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[ { "docid": "4456525", "title": "", "text": "HOLMES, Circuit Judge. This appeal is from the dismissal of an original complaint alleging a violation of appellant’s civil rights, and from the refusal of the lower court to allow the filing of an amended complaint on the ground that the amended complaint failed to state a cause of action upon which relief could be granted. The amended complaint founded jurisdiction on 8 U.S.C.A. § 43, which affords redress to the injured party for violations of his civil rights. In substance, the amended complaint alleged that the City of Jacksonville, acting through the Superintendent of its Prison Farms, and under col- or of law, regulations, .ordinances, and customs of the City, and while the plaintiff was a prisoner confined at its Prison Farms, “did unlawfully and wilfully shoot off and discharge a pistol against, into, and upon the plaintiff,” and that such act constituted a deprivation of the plaintiff’s civil rights, for which an action is authorized Under 8 U.S.C.A. § 43. The Superintendent of the Prison Farms is not made a party to this suit.' The appellant stakes his entire case on his claim against the City of Jacksonville. The lower court, in refusing to allow the amended complaint to be filed, held that the word “persons” used in the Civil Rights statute, 8 U.S.C.A. § 43, does not include a State or its governmental subdivisions acting in their sovereign, as distinguished from their proprietary, capacity. It further held that the appellant’s assertion that he was shot by the Superintendent of the Prison Farms did not constitute a sufficient allegation of fact to charge a deprivation of civil rights within the meaning of the statute. We are in accord with the views expressed by the lower court; and, on the authority of Charlton v. City of Hialeah, 188 F.2d 421, this day decided by this court, the judgment appealed from is affirmed. Affirmed." } ]

[ { "docid": "18328512", "title": "", "text": "to allow interlocutory appeal in this potentially protracted and expensive antitrust action comports with this policy. Accordingly, this order and the court’s order dated March 26, 1985 shall be amended pursuant to 28 U.S.C. section 1292(b) to allow interlocutory appeal of those orders to the Ninth Circuit Court of Appeals. VI. CONCLUSION The court concludes that although defendant acted pursuant to a clearly articulated state policy to displace competition, the challenged acts contravened clearly expressed state policy regarding utilization of water resources and therefore were not contemplated by the legislature. Accordingly, defendant is not immune from federal antitrust liability under the state action immunity doctrine. This conclusion expresses no opinion on the underlying merits of the case, of course, but it does compel denial of defendant’s motion for summary judgment. Defendant’s motion for summary judgment is therefore DENIED. The motions for abstention and reconsideration are also DENIED. The motion for certification for interlocutory appeal is GRANTED as set forth herein. IT IS SO ORDERED. . Both parties engage in a lengthy discussion about the applicability of Garcia v. San Antonio Municipal Transit Authority, — U.S.-, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) to this case. There, the Supreme Court held that the overtime and minimum wage requirements of the Fair Labor Standards Acts (\"FLSA”) applied to employees of a municipally-owned transportation system. The court reasoned that applying the FLSA to municipal employees contravened no affirmative limit on Congress’ power under the commerce clause of the United States Constitution. In so holding, the court discarded the concept of “governmental” versus “proprietary” function as a criterion for characterizing actions of a local public agency for purposes of applying the FLSA. Plaintiff argues that because state action immunity is not based on constitutional interpretation, the Garcia case does not apply to it. “The ’proprietary/governmental’ distinction remains viable when applying the antitrust laws to the cities.” Plaintiff's response, page 15. Thus, plaintiffs argument goes, defendant’s activities were \"proprietary” rather than \"governmental” and not subject to immunity from the antitrust laws. Defendant, on the other hand, contends that Garcia is applicable as reflecting the intent" }, { "docid": "15751449", "title": "", "text": "been excluded from the definition of a “person” subject to suit for alleged civil rights violations as that term is used in 42 U.S.C. § 1983. See, e. g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Mayhue v. City of Plantation, 375 F.2d 447 (5th Cir. 1967); Charlton v. City of Hialeah, 188 F.2d 421 (5th Cir. 1951); Hewitt v. City of Jacksonville, 188 F.2d 423 (5th Cir. 1951), cert, denied, 342 U.S. 835, 72 S.Ct. 58, 96 L.Ed. 631 (1951); Broome v. Simon, 255 F.Supp. 434 (W.D.La.1965). Thus, all municipal parties originally made defendant have now been dismissed from the suit. Pretrial motions seeking dismissal as to each of the individual defendants were denied; it is against those individuals who justify racial discrimination behind the badge of legislative fiat that 42 U.S.C. § 1983 is directed. Monroe v. Pape, supra. In that same in limine proceeding, another defense motion seeking dismissal of the suit in its entirety for procedural misuse of the class action was also denied. This latter ruling, although arising out of defendants’ motion to dismiss, necessarily meant that the suit could, at least for the time being, be brought as a class action and was thus in áccord with the mandate of Rule 23 (c) (1), which directs that as soon as practicable after the commencement of [any] action brought as a class action, “the court shall determine by order whether it is to be so maintained.” (Emphasis added.) Although Rule 23 (c) (1) is not specific, there seems to be no reason why this Court’s affirmative determination that this suit can, at least for the present, be maintained as a class action could not have been made on motion of either the proponent or opponent of the class action procedure, as well as on the Court’s own motion. See, City of New York v. International Pipe & Ceramics Corp., 44 F.R.D. 584 (S.D.N.Y. 1968); 3B Moore, Federal Practice, ff 23.50, pp. 23-1101-1105 (1969). Having determined that this matter may proceed as a class action, the case is before us" }, { "docid": "10912135", "title": "", "text": "dismiss Plaintiffs claims for negligence and negligent infliction of emotional distress. The Court grants Defendant Newman’s motion to dismiss Plaintiffs claim for assault and battery. The Court denies, however, Defendant Newman’s motion to dismiss the claim for intentional infliction of emotional distress and the claim raised pursuant to 42 U.S.C. § 1983 for violation of the Fourth Amendment. Furthermore, the Court denies without prejudice Defendants’ motion for summary judgment as no discovery has been conducted at this time. IT IS SO ORDERED this_day of November, 2004. . There has been no discovery conducted in the instant action. Therefore, although the motion is styled as one to dismiss or in the alternative for summary judgment, the Court finds that the motion should be considered pursuant to the standard of Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 12(b)(6) (stating that if \"matters outside the pleading are presented to and not excluded by the court, the motion [to dismiss] shall be treated as one for summary judgment and disposed of as provided for in Rule 56....”). . Except as noted, facts are taken both from Plaintiff's complaint and from Defendants’ motion to dismiss and Plaintiff's response to the motion to dismiss. . Since Plaintiff does not allege that Luhrs himself used excessive force on Plaintiff, the allegation could only be against Defendant in his supervisory capacity. . Plaintiff relied on Marchese v. Lucas, 758 F.2d 181 (6th Cir.1985), for the proposition that Luhrs can be held liable for the failure to supervise. That case, however, dealt with a sheriff who was sued, in his official capacity. Marchese, 758 F.2d at 188. Moreover, the sheriff’s liability was based on the county’s official policy. Id. . The Court would note that significant distinctions can be made between this case and Limbaugh with the primary distinction being that Plaintiff in the instant action is suing the governmental employee tortfeasor for the intentional tort of assault and battery. In Limbaugh, the issue of whether the intentional tortfeasor was immune from suit for her tor-tious actions committed as a governmental employee was not raised" }, { "docid": "17253430", "title": "", "text": "contribution theory, and summary judgment is granted in favor of third-party defendants and against third-party plaintiff. An appropriate order follows. . Ballard attached certain exhibits to its Motion to Dismiss which rendered the motion appropriate for summary judgment treatment. On March 19, 1982, I instructed the parties that I would so treat the motion and ordered them to submit whatever additional materials they deemed appropriate, with special emphasis upon six enumerated areas. The United States filed a motion for continuance of consideration of the summary judgment motion pursuant to Federal Rule of Civil Procedure 56(f), claiming that the information requested in my order was in Ballard’s possession. I denied that motion since I found that the information should be equally available to either party. . Whether the United States is entitled to indemnity or contribution has an obvious effect on federal fiscal policy. As a result, Professor Moore argues that the federal courts should develop a uniform federal law of contribution/indemnity to avoid the anomalous results which may occur when state law is applied. 3 J. Moore, supra at ¶ 14.29. Even though the matter may be a federal one, the courts which have considered the question have chosen to apply state law, relying in part on the decision of the United States Supreme Court in United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951). In this case, the court held that the Federal Tort Claims Act permits impleader of the United States as a third-party defendant to answer a claim for contribution, as if the United States were a private individual. Id. at 544, 71 S.Ct. at 401. The court intimated that local substantive law would be determinative. Id. at 552, 71 S.Ct. at 405. . The United States asserts that the Lasprogata rule has been discredited by subsequent case law in Pennsylvania and by two Third Circuit opinions, Duckworth v. Ford Motor Co., 320 F.2d 130 (3d Cir. 1963) (allowing contribution between manufacturer and dealer) and Chamberlain v. Carborundum Co., 485 F.2d 31 (3d Cir. 1973) (allowing contribution between manufacturer and" }, { "docid": "13009259", "title": "", "text": "Plaintiffs rely on Owen v. City of Independence, Missouri, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), for support. Owen refused to extend immunity to a municipality for liability under 42 U.S.C. § 1983 for civil rights violations. The Court feared that granting such immunity might eviscerate the Civil Rights Act, and stated the scope of the city’s immunity turned on the proper construction of 42 U.S.C. § 1983. 445 U.S. at 635, 100 S.Ct. at 1407. Rather than testing municipal immunity under § 1983, we must look to the Maloney Act for initial guidance on NASD’s immunity here. Furthermore, Owen involved the application of traditional sovereign immunity to local governmental units. The NASD exercises quasi-governmental authority pursuant to a statutory scheme enacted by the national sovereign. The NASD’s actions are more akin to those of the SEC, which has sovereign immunity from damage suits, Sprecher v. Graber, 716 F.2d 968, 973-74 (2d Cir.1983), than to municipal activities. Although the NASD possesses no sovereign power, we conclude that under the rationale of Butz, it requires absolute immunity from civil liability for actions connected with the disciplining of its members. The NASD was sued in this case in its representative capacity, and the claims made against it were the result of actions of the DBCC members’ conduct. Plaintiffs alleged NASD complicity in the conspiracy but have not suggested how the organization participated beyond the actions of its immune officials. Such allegations are not sufficient to withstand a summary judgment motion under our recent opinion of Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985). Since no connection with plaintiffs is asserted except through the conduct of DBCC members, the NASD was acting in an adjudicatory and prosecutorial capacity. The NASD is required by statute to enforce the securities laws. We have held that the disciplinary actions taken by DBCC members were within the outer scope of their authority. It would be anamolous to refuse to absolutely immunize the parent organization while at the same time granting immunity to its members and officers when the latter’s actions form the sole" }, { "docid": "22102040", "title": "", "text": "meet: is the city a “person” under the Civil Rights Act’s provisions that “Every person who * * * subjects * * * any citizen of the United States * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable * *.” This issue was directly answered by the Supreme Court in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), which held that a municipality was not such a “person” contemplated by the Civil Rights Act of 1871. Accordingly, there can be no claim upon which relief can be granted under the Civil Rights Act of 1871 against a municipality. Similarly, because Philadelphia General Hospital is a city-owned institution which operates as part of city government (Philadelphia Home Rule Charter, § 3-100(f), § 3-903) it stands on the same footing as the municipal defendant. We conclude it was appropriate to dismiss the action against these two defendants. The same may also be said of the commonwealth of Pennsylvania. The doctrine of Monroe has been extended to the states in their capacities as parties defendant in such cases. On this basis, the action was properly dismissed against the defendant Commonwealth of Pennsylvania. We hasten to add, however, that although we concur in the action of the court below in dismissing the complaint against this defendant, we do not condone the failure of this defendant to file appropriate pleadings. The trial court was careful to extend a broad overview to the subject matter of the plaintiffs’ complaint because of its pro se format; it was equally generous to treat the Commonwealth of Pennsylvania as if it had filed a motion to dismiss as had the other defendants. That this failure to comply with basic and fundamental rules of procedure has not operated adversely to this defendant is no indication that such inexcusable dereliction will find acceptance in the future. Regarding the claim against the Williamsport Hospital, an examination of the specific averment against the hospital indicates that it sounds in negligence only; it rises no higher than" }, { "docid": "15877399", "title": "", "text": "of municipal and state immunity with these words: “A municipal corporation is but a political subdivision of a state, and if a state’s political subdivisions are not ‘persons’ under the statute, then neither is the state.” Judge Holmes, speaking for our circuit in Charlton v. City of Hialeah, 5 Cir. 1951, 188 F.2d 421, 423, a similar case concerning an unlawful arrest where the City of Hialeah was sued for damages, said: “We are unable to find any indication that the civil-rights statute was intended by Congress to create such a liability on the part of the municipality itself, as distinguished from the ‘person’ who committed the acts which deprived the plaintiff of his civil rights. It was not intended by the 14th Amendment and the civil-rights statute that all matters formerly within the exclusive cognizance of the states should become matters of national concern. A construction such as that sought by the appellant would find a violation of federal rights in every departure from local or state law by local or state officers. Every illegal discrimination by a policeman on the beat would be state action for the purpose of suit in a federal court.” Accord, Harvey v. Sadler, 9 Cir. 1964, 331 F.2d 387; Hewitt v. City of Jacksonville, 5 Cir. 1951, 188 F.2d 423. Compare United States v. Alabama, 362 U.S. 602, 80 S.Ct. 924, 4 L.Ed.2d 982 (1960), holding that, under the Civil Rights Act of 1960, the federal court had jurisdiction to entertain an action against the state for declaratory and injunctive relief to prevent race discrimination in voting. Florida state law is in accord with the federal law on which we rely on the issue of a municipality’s immunity from damages caused by enforcement of its unconstitutional ordinances. In Elrod v. City of Daytona Beach, 1938, 132 Fla. 24, 180 So. 378, 381, 118 A.L.R. 1049, the court clearly stated that such a damage claim against the city is not supportable. “The almost unanimous weight of authority is against holding the municipality liable for the enforcement of an unconstitutional or void ordinance. We feel" }, { "docid": "8438398", "title": "", "text": "62 Cal.App.2d 306, 144 P.2d 631, 635 (1944); 7 McQuillan, Municipal Corporations § 24.660 (3d ed. 1978); 9 McQuillan, Municipal Corporations § 26.173 (3d ed. 1978). We hold that a city need not prove active state supervision to be entitled to Parker immunity when it franchises taxicab companies and regulates taxicab fares within the city. The state legislature has determined that public transportation by taxicab should be regulated and that preferably the regulation should be handled by local government. A requirement of active state supervision would erode local autonomy. It makes little sense to require a state to invest its limited resources in supervisory functions that are best left to municipalities. As Justice Rehnquist observed, “[i]t would seem rather odd to require municipal ordinances to be enforced by the State rather than the City itself.” Community Communications Co. v. City of Boulder, 455 U.S. at 71, n. 6,102 S.Ct. at 851, n. 6 (Rehnquist, J. dissenting). Conclusion The California Constitution and California’s statutes show an affirmatively expressed and clearly articulated state policy to displace competition with regulation in the taxicab industry. The challenged actions of the City were taken pursuant to that policy and were contemplated by the legislature. That is sufficient to immunize the City from antitrust liability under Parker v. Brown. The district court did not err in denying Yellow Cab’s request for a preliminary injunction and partial summary judgment or in dismissing the antitrust claims against the City of Los Angeles. Accordingly, the judgment of the district court is AFFIRMED. . The City did not move for summary judgment. Nevertheless, a court may on its own grant summary judgment in favor of a non-moving party if it appears that the moving party could not prevail even if a trial were held. Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311 (9th Cir.1982). . Yellow Cab’s causes of action alleging violations of the Supremacy Clause and the Due Process Clause are pending before the district court. The district court entered an appropriate certification on the partial summary judgment under Rule 54(b) of the Federal Rules of Civil Procedure," }, { "docid": "16624599", "title": "", "text": "as to its continued vitality and (2) even if Stencel is still good law the doctrine of that case does not apply to the independent claims of the wives and children of the veterans. For the reasons indicated below, upon reconsideration, the government’s motion to dismiss the third-party complaint is granted only as to the claims by the veterans and the derivative claims by their family members. The government’s motion to dismiss is denied as to the independent claims of the plaintiffs’ wives and children. I. INTRODUCTION Under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), et seq., the United States waives its sovereign immunity from suits in tort, and vests jurisdiction over such claims exclusively in the United States District Courts. In United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951), the Supreme Court held that, pursuant to the FTCA’s language, that the United States is liable “under circumstances where * * * a private person would be liable to the claimant,” 28 U.S.C. § 1346(b), the United States may be made a third-party defendant in those situations where a private party could have been im-pleaded. Although the FTCA “waives the Government’s immunity from suit in sweeping language,” United States v. Yellow Cab Co., 340 U.S. at 547, 71 S.Ct. at 402, the waiver is limited by the terms of the Act’s exceptions. If a claim falls within any exception to the FTCA, sovereign immunity has not been waived and the court is without jurisdiction to hear the case. United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976). One of those exceptions was recognized by the Supreme Court in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). That case and subsequent cases interpreting it hold that a member of the armed forces cannot sue the government in tort for injuries which “arise out of or are in the course of activity incident to service.” Feres, 340 U.S. at 146, 71 S.Ct. at 159. This judicially created exception was" }, { "docid": "15645537", "title": "", "text": "Candell v. United States, 189 F.2d 442, 444 (C.A.10th, 1951.) Nor can the plaintiff evade the doctrine of sovereign immunity by claiming that this suit is one against officers of the United States, since a suit against such officers is, in effect, a suit against the United States itself and must fail because of the government’s immunity from suit. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 688, 69 S.Ct. 1457, 93 L.Ed. 1628 (1948); Malone v. Bowdoin, 369 U.S. 643, 647, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962); Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). Turning now to the State of California, it is clear that the word “persons” as used in the Civil Rights Acts (42 U.S.C. § 1983) does not include a State or its governmental subdivision, acting in its sovereign, as distinguished from its proprietary, capacity. Hewitt v. City of Jacksonville, 188 F.2d 423, 424 (C.A.5th 1951), cert. den. 342 U.S. 835, 72 S.Ct. 58, 96 L.Ed. 631 (1951); Sires V. Cole, 320 F.2d 877, 879 (C.A.9th 1963). Thus it is that the defendants are entitled to judgment against plaintiff, whether this judgment should be in the form of a dismissal motion or in the form of a summary judgment, or both. Rule 12(b) of the Federal Rules of Civil Procedure, provides that a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted shall be treated as one for summary judgment and disposed of under Rule 56 if matters outside the pleading are presented to and not excluded by the Court, and if all parties have been given reasonable opportunity to present all pertinent material. Moss v. Hornig, 214 F.Supp. 324, 330-331 (D.Conn.1962); North America Iron and Steel Co. v. United States, 130 F.Supp. 723, 724 (E.D.N.Y. 1955); Hibben v. Kuchaj, 117 F.Supp. 55, 56 (N.D.Ill.1953). These two conditions have been met here, since plaintiff was given every opportunity and encouragement by the Court to present all the facts in his possession, including hearsay information and belief both" }, { "docid": "15588311", "title": "", "text": "71 S.Ct. 500. The appellees urge on appeal that the claims of appellant are barred by laches. This defense, however, is required to be made affirmatively in the District Court under Rule 8(c), Fed.R.Civ.P.; and Rule 12(b) requires that such an affirmative defense be made by a responsive pleading. The appellees, however, moved to dismiss, and this, under the above Rules, did not raise the question of laches; nor did the affidavits filed in the District Court affirmatively raise that issue. When, therefore, the court granted summary judgment pursuant to the provisions of Rule 12(b), no issue of laches was presented by the pleadings or affidavits. See footnote 1, supra. Reversed and remanded for further proceedings. . Under Rule 12(b), Fed.R.Civ.P., it is only on a motion asserting the defense numbered (6), failure to state a claim upon which relief can be granted, that the motion “shall be treated as one for summary judgment” when matters outside the pleading are presented to and not excluded by the court. A motion to dismiss for lack of jurisdiction over the subject matter is not so converted for obvious reasons. Had the court determined that it had no jurisdiction over the subject matter, dismissal rather than summary judgment would have been the proper disposition. See Miller v. Woods, 1950, 87 U.S.App.D.C. 324, 185 F.2d 499. . It may be noted also, without deciding, that other jurisdictional questions may be presented by the possible misjoinder of individual defendants with the United States. See United States v. Sherwood, 1941, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058; compare National Exchange Club v. Reams, D.C.N.D.Ohio 1943, 4 F.R.D. 151; Rule 21, Fed.R.Civ.P.; United States v. Yellow Cab Co., 1951, 340 U.S. 543, 553, 71 S.Ct. 399. Since, as we have noted, these questions were not considered by the court below, and in view of the disposition which we now make of this case, we express no opinion. upon their resolution. See Van Der Weyde v. Ocean Co., 1936, 297 U.S. 114, 118, 56 S.Ct. 392, 80 L.Ed. 515. . Act of August 24, 1912, c." }, { "docid": "2312452", "title": "", "text": "118 N.E. 667 and we are not aware of any cases arising under the Civil Rights Act which have so held. Federal jurisdiction has been upheld in an action against a city and some of its officials, seeking an injunction and damages, but this point on the city’s responsibility was not adverted to. Burt v. City of New York, 2 Cir., 1946, 156 F.2d 791. Since the complaint which is before us sets forth a statutory cause of action created by Congress, the limits of liability must be governed by federal law. In the absence of any clear authority on this point, we are of the opinion that the Massachusetts law in this regard properly defines the limits of liability which Congress intended. We are not warranted in reading into the language and purpose of the Civil Rights Act the right of action alleged against the municipality in this case. Charlton v. City of Hialeah, 5 Cir., 1951, 188 F.2d 421; Hewitt v. City of Jacksonville, 5 Cir., 1951, 188 F.2d 423. At least with regard to the operation of its school system, we think that a municipality is not liable for the conduct of its officials who flout the Constitution. Even if the City of Malden were held liable for the wrongs of its officials, a federal court should deny injunctive relief in the proper exercise of its discretion. See Stainbadk v. Mo Hock Ke Lok Po, 1949, 336 U.S. 368, 69 S.Ct. 606, 93 L.Ed. 741; Burford v. Sun Oil Co., 1943, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424. In this respect, the federal cause of action against the city is reduced to a consideration of' whether or not this case presents a situation calling for the equitable relief which, rests in the sound discretion of the court.. With regard to the propriety of a federal decree against a municipality, it must first be observed that we are dealing with a most important phase of municipal conduct or state action. The Commonwealth of Massachusetts has enacted several statutory provisions designed to insure the integrity of its" }, { "docid": "6712720", "title": "", "text": "officers exercising the authority delegated to a town or city might, in their individual capacity, be a party to a conspiracy; but a municipal corporation, which is limited by law to the purposes and objects of its creation, namely, the maintaining and exercising of the powers of local government, cannot in its sovereign or municipal capacity be a party to a conspiracy. This action is not against the persons (police officers) alleged to have deprived the plaintiff of his rights and immunities. It is against the defendant Fair-cloth, not shown to be connected with the City in any way, and the City of Hialeah, a municipal corporation, acting in its capacity as a governmental subdivision of the State of Florida. Thus, the action is in effect one against the State itself through its governmental subdivision, the City of Hialeah. The Civil Rights statute, 8 U.S.C.A. § 43, has been held to extend only to cases where a “person” acting under color of a statute, ordinance, regulation, custom, or usage, of a state.or territory, deprives a citizen or other person of a right, privilege, or immunity secured by the Constitution and laws of the United States. Under the laws of Florida, a municipality acting in its sovereign or governmental capacity is not liable for its ordinary torts unless committed in violation of an express statutory duty. Brown v. Town of Eutis, 92 Fla. 931, 110 So. 873; Elrod v. City of Daytona Beach, 132 Fla. 24, 180 So. 378, 118 A.L.R. 1049; Kennedy v. City of Daytona Beach, 132 Fla. 675, 182 So. 228; Bradley v. City of Jacksonville, 156 Fla. 493, 23 So.2d 626. There is no allegation here that the City of Hialeah was not acting in its sovereign or governmental capacity. Therefore, under the laws of Florida, the defendant City of Hialeah could not he liable in tort under the allegations of the complaint. We are unable to find any indication that the civil-rights statute was intended by Congress to create such a liability on the part of the 'municipality itself, as distinguished from the “person” who committed" }, { "docid": "15060935", "title": "", "text": "PER CURIAM. Plaintiff brought this action in the Southern District of New York to recover damages of $500,000 alleged to have been sustained as a result of having been struck by a taxicab in New York City. The complaint named as defendants Colt Co., Inc., the owner of the cab, Fermaglick, its driver, Ackerman and others who were alleged to dominate Colt Co., Inc. so as to make them liable for its actions, two companies alleged to have failed to maintain the cab properly, the company that manufactured the cab and the dealer that sold it. Federal jurisdiction was based on diversity of citizenship. Ackerman moved pursuant to Fed.R.Civ.Proc. 12(b) to dismiss the complaint as to him as failing to state a claim upon which relief can be granted. The district judge granted the motion and ordered “that in accordance with Rule 54(b) of the Rules of Civil Procedure, it is hereby determined that there is no just reason for delay and the entry of judgment dismissing the complaint as against the defendant, Edwin Ackerman, is accordingly directed.” Plaintiff has appealed from this order and judgment. Amended Rule 54(b) applies by its terms only “When more than one claim for relief is presented in an action.” In Goldlawr, Inc. v. Heiman, 2 Cir., 1959, 273 F.2d 729, 731, we made it clear that the Rule “does not allow a finding of finality * * * where a single claim against multiple parties is dismissed as against some but not all.” That is precisely this case. Plaintiff asserts a single claim for the injury alleged to have been done him by the taxicab; the order sought to be appealed dismisses the claim , only as against Ackerman. Such an order is not a “final decision” under 28 U.S.C. § 1291. As said in Goldlawr, Inc. v. Heiman, supra, “a 54(b) certificate is ineffective to make appealable a judgment dismissing the action against some parties but leaving it pending against others.” The distinctions of Goldlawr asserted by plaintiff are unconvincing. The case is parallel to Lopinsky v. Hertz Drive-Ur-Self System, Inc., 2" }, { "docid": "15751448", "title": "", "text": "States or other person within the jurisdiction thereof to, the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. In an earlier in limine proceeding had in this case, this Court granted certain pre-trial motions brought by the defendants pursuant to Rule 12(b) (1) and 12(b) (6), Federal Rules of Civil Procedure, to dismiss plaintiffs’ claims for lack of jurisdiction and failure to state a claim upon which relief could be granted insofar as the municipal defendants, the City of Baton Rouge, the Baton Rouge City Council, and the Parish of East Baton Rouge were concerne.d. Plaintiffs have plainly erred in concluding that municipal corporations and parishes (counties), together with their local governing bodies, are susceptible to suit under the authority of the civil rights statutes relied on for federal subject matter jurisdiction in this case. To the contrary, municipal corporations and other like municipal entities have time and again been excluded from the definition of a “person” subject to suit for alleged civil rights violations as that term is used in 42 U.S.C. § 1983. See, e. g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Mayhue v. City of Plantation, 375 F.2d 447 (5th Cir. 1967); Charlton v. City of Hialeah, 188 F.2d 421 (5th Cir. 1951); Hewitt v. City of Jacksonville, 188 F.2d 423 (5th Cir. 1951), cert, denied, 342 U.S. 835, 72 S.Ct. 58, 96 L.Ed. 631 (1951); Broome v. Simon, 255 F.Supp. 434 (W.D.La.1965). Thus, all municipal parties originally made defendant have now been dismissed from the suit. Pretrial motions seeking dismissal as to each of the individual defendants were denied; it is against those individuals who justify racial discrimination behind the badge of legislative fiat that 42 U.S.C. § 1983 is directed. Monroe v. Pape, supra. In that same in limine proceeding, another defense motion seeking dismissal of the suit in its entirety for procedural misuse of the class action was also denied. This" }, { "docid": "11200560", "title": "", "text": "remove litter from the Miller Place Property in accordance with the Town Code. Thus, Lowe is entitled to the defense of qualified immunity. See Lennon v. Miller, 66 F.3d 416, 421 (2d Cir.1995) (“If there is no dispute about the material facts, the district court should assess the reasonableness of the defendants’ conduct under the circumstances presented in order to determine on summary judgment whether the defendants are entitled to qualified immunity.”) Accordingly, Defendants’ motion for summary judgment to dismiss the claims against the Individual Defendants, in their individual capacity, is granted. (b) Town Board Members “Local legislators, such as members of a town board, are absolutely immune from civil rights lawsuits provided that the actions for which they are being sued are ‘legislative.’ ” Livant v. Clifton, 334 F.Supp.2d 321, 326 (E.D.N.Y.2004), aff'd, 272 Fed.Appx. 113 (2d Cir.2008), (citing Harhay v. Town of Ellington Bd. of Ed., 323 F.3d 206, 210 (2d Cir.2003); Carlos v. Santos, 123 F.3d 61, 66 (2d Cir. 1997)). “Whether an act is legislative turns on the nature of the act itself, rather than on the motive or intent of the official performing it.” Bogan v. Scot-Harris, 523 U.S. 44, 45, 118 S.Ct. 966, 968, 140 L.Ed.2d 79 (1998) (citation omitted). Insofar as Plaintiff alleges that the Town Board Members voted in favor of or enacted the Town Codes at issue or that the Town Board Members authorized the clean-up at the Miller Place Property, such actions are legislative in nature. See Li-vant 334 F.Supp.2d at 326. Accordingly, Defendants’ motion for summary judgment to dismiss the claims against the Town Board Members, in their individual capacity, is granted. 3. Municipal Liability A municipality or municipal entity cannot be held liable under § 1983 on a respondeat superior theory. See Monell, 436 U.S. at 691, 98 S.Ct. 2018; Linder v. City of New York, 263 F.Supp.2d 585, 591 (E.D.N.Y.2003). A municipal entity may only be held liable if the alleged offending conduct was undertaken pursuant to “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipal] officers!,] ... [or] governmental ‘custom’ even" }, { "docid": "13937966", "title": "", "text": "state, and if a state’s political subdivisions are not “persons” under the statute, then neither is the state. See, also, Charlton v. City of Hialeah, 5 Cir., 188 F.2d 421, 422-423. The district court therefore did not err in granting the Rule 12(b) (6) motion as to the defendant state. Concerning the personal defendants, the allegations of fact state a claim under the Civil Rights Act, on which relief can be granted. See Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030. The district court therefore erred in granting the Rule 12(b) (6) motion as to those defendants. Pointing to the fact that there was an alternative motion under Rule 56, for a summary judgment, appellee asks us to uphold the dismissal under the latter motion notwithstanding the fact that the district court expressly denied the Rule 56 motion. In this connection it is to be borne in mind that Rule 12(b) itself provides, in part, that if, on a motion to dismiss for failure to state a claim, “ * * * matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, * * * ” But appellants contend that apart from the district court’s express denial of the Rule 56 motion, the order is not sustainable as a summary judgment because there are genuine issues as to material facts. Rule 56(c) expressly precludes the entry of summary judgment where there are such issues. In our view there are genuine issues of material fact. These issues bear upon the nature of the Muslim beliefs, the effect that practice of such beliefs has had and will have upon the maintenance of order and discipline in the prison, and the administrative difficulties involved in permitting Black Muslims more latitude in the dissemination and practice of their beliefs within the prison walls. These issues were drawn when plaintiff filed a response to the affidavits and exhibits filed in support of the motion for summary judgment. We therefore agree" }, { "docid": "13937965", "title": "", "text": "It follows that the dismissal of the action under Rule 12(b) (6) cannot be sustained on the ground relied upon by the district court. If, however, the amended complaint, considered apart from all other materials, fails to state a claim on which relief can be granted, then we should sustain the dismissal under Rule 12(b) (6), notwithstanding the fact that the district court improperly based such dismissal on facts not alleged in that pleading. See Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80; Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224. The allegations of fact contained in the amended complaint, as summarized above, do not state a claim against the State of California under the Civil Rights Act. In Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492, it was held that a municipal corporation is not a “person” subject to suit within the meaning of R.S.1979, 42 U.S.C. § 1983. A municipal corporation is but a political subdivision of a state, and if a state’s political subdivisions are not “persons” under the statute, then neither is the state. See, also, Charlton v. City of Hialeah, 5 Cir., 188 F.2d 421, 422-423. The district court therefore did not err in granting the Rule 12(b) (6) motion as to the defendant state. Concerning the personal defendants, the allegations of fact state a claim under the Civil Rights Act, on which relief can be granted. See Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030. The district court therefore erred in granting the Rule 12(b) (6) motion as to those defendants. Pointing to the fact that there was an alternative motion under Rule 56, for a summary judgment, appellee asks us to uphold the dismissal under the latter motion notwithstanding the fact that the district court expressly denied the Rule 56 motion. In this connection it is to be borne in mind that Rule 12(b) itself provides, in part, that if, on a motion to dismiss for failure to state a claim, “ * *" }, { "docid": "6712721", "title": "", "text": "citizen or other person of a right, privilege, or immunity secured by the Constitution and laws of the United States. Under the laws of Florida, a municipality acting in its sovereign or governmental capacity is not liable for its ordinary torts unless committed in violation of an express statutory duty. Brown v. Town of Eutis, 92 Fla. 931, 110 So. 873; Elrod v. City of Daytona Beach, 132 Fla. 24, 180 So. 378, 118 A.L.R. 1049; Kennedy v. City of Daytona Beach, 132 Fla. 675, 182 So. 228; Bradley v. City of Jacksonville, 156 Fla. 493, 23 So.2d 626. There is no allegation here that the City of Hialeah was not acting in its sovereign or governmental capacity. Therefore, under the laws of Florida, the defendant City of Hialeah could not he liable in tort under the allegations of the complaint. We are unable to find any indication that the civil-rights statute was intended by Congress to create such a liability on the part of the 'municipality itself, as distinguished from the “person” who committed the acts which deprived the plaintiff of his civil rights. It was not intended by the 14th Amendment and the civil-rights statute that all matters formerly within the exclusive cognizance of the states should become matters of national concern. A construction such as that sought by the appellant would find a violation of federal rights in every departure from local or state law by local or state officers. Every illegal discrimination by a policeman on the beat would be state action for the purpose of suit in a federal court. See Snowden v. Hughes, 321 U.S. 1, at pages 11, 16, 64 S.Ct. 397, 88 L.Ed. 497. Despite the unlawfulness of the treatment Charlton received at the hands of Faircloth and the local police officers in the City of Hialeah, we find ourselves unable to afford him any relief. His relief is against these individuals in the state courts of Florida. The complaint failed to state a cause of action within the jurisdiction of the federal courts, and, since the dismissal below was with prejudice," }, { "docid": "15645536", "title": "", "text": "509 (W.D.Mich.1955). The reason for this rule is a simple and fundamental matter of policy which, in the words of Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579, 580-581 (C.A.2d 1949) is to permit public officers to act unflinchingly in the discharge of their duties without a constant dread of retaliation. But even more important than these considerations is the fact that, with respect to defendant United States of America, the well-established principle of law summed up in the phrase, “doctrine of sovereign immunity”, stands as an unalterable and impregnable barrier between plaintiff and any injunctive relief against this defendant. Stated another way, the sovereign cannot be sued without its consent and any possible waiver of this immunity, as for instance in the Federal Tort Claims Act (28 U.S.C. §§ 1346(b), 2671-2680), must be strictly construed. United States v. Sherwood, 312 U.S. 584, 589, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Wallace v. United States, 142 F.2d 240, 243 (C.A.2d 1944), cert. den. 323 U.S. 712, 65 S.Ct. 37, 89 L.Ed. 573 (1944) Candell v. United States, 189 F.2d 442, 444 (C.A.10th, 1951.) Nor can the plaintiff evade the doctrine of sovereign immunity by claiming that this suit is one against officers of the United States, since a suit against such officers is, in effect, a suit against the United States itself and must fail because of the government’s immunity from suit. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 688, 69 S.Ct. 1457, 93 L.Ed. 1628 (1948); Malone v. Bowdoin, 369 U.S. 643, 647, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962); Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). Turning now to the State of California, it is clear that the word “persons” as used in the Civil Rights Acts (42 U.S.C. § 1983) does not include a State or its governmental subdivision, acting in its sovereign, as distinguished from its proprietary, capacity. Hewitt v. City of Jacksonville, 188 F.2d 423, 424 (C.A.5th 1951), cert. den. 342 U.S. 835, 72 S.Ct. 58, 96 L.Ed. 631 (1951); Sires V. Cole," } ]

[ { "docid": "14230387", "title": "", "text": "briefs were filed by the United States Patent and Trademark Office and Fish & Richardson P.C. . We do not address the issue whether the breadth of the claim may implicate other validity issues, such as enablement. Only written description is before us. LOURIE, Circuit Judge, with whom PAULINE NEWMAN, Circuit Judge, joins, filed an opinion concurring in the court’s decision not to hear the case en banc. PAULINE NEWMAN, Circuit Judge, filed an opinion concurring in that decision. DYK, Circuit Judge, filed an opinion concurring in that decision. RADER, Circuit Judge, with whom GAJARSA and LINN, Circuit Judges, join, filed an opinion dissenting from that decision. LINN, Circuit Judge, with whom RADER and GAJARSA, Circuit Judges, join, filed an opinion dissenting from that decision. ON DENIAL OF PETITION FOR REHEARING EN BANC LOURIE, Circuit Judge, with whom PAULINE NEWMAN, Circuit Judge, joins, concurring in the court’s decision not to hear the case en banc. I agree that the court correctly declined to hear this case en banc. First, it is important to note that the earlier panel majority, in response to the petition for rehearing, has reversed its earlier decision. Taking the case en banc would therefore delay and hence frustrate the remand of the case solely for the purpose of revising written description law. That law is sound and does not need revision, at least as proposed by the dissents. The dissenters believe that the written description requirement is simply a requirement for enablement. With all due respect, that is incorrect. The complete statutory provision is as follows: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. 35 U.S.C. § 112, ¶ 1 (1994) (emphasis added). I read the statute so as to give effect" } ]

[ { "docid": "22859028", "title": "", "text": "inequitable conduct, id. at 1380, but reversed the jury’s verdict on written description, holding the asserted claims invalid for lack of an adequate written description as required by 35 U.S.C. § 112, first paragraph, id. at 1376. Ariad petitioned for rehearing en banc, challenging the existence of a written description requirement in § 112, first paragraph, separate from the enablement requirement. Although not a new question, see In re Barker, 559 F.2d 588, 591-93 (CCPA 1977), its prominence has increased in recent years, see Lizardtech, Inc. v. Earth Res. Mapping, Inc., 433 F.3d 1373 (Fed.Cir.2005) (denying rehearing en banc on the question whether a separate written description requirement exists in § 112, first paragraph); Univ. of Rochester v. G.D. Searle & Co., Inc., 375 F.3d 1303 (Fed.Cir.2004) (same); Enzo Biochem, Inc. v. Gen-Probe Inc., 323 F.3d 956, 970 (Fed.Cir.2002) (same). In light of the controversy concerning the distinctness and proper role of the written description requirement, we granted Ariad’s petition, vacating the prior panel opinion and directing the parties to brief two questions: (1) Whether 35 U.S.C. § 112, paragraph 1, contains a written description requirement separate from an enablement requirement? (2) If a separate written description requirement is set forth in the statute, what is the scope and purpose of that requirement? In addition to the parties’ briefs, the court received twenty-five amicus briefs. Of those, seventeen were filed in support of Lilly, one was filed in support of Ariad, and seven were filed in support of neither party. The majority, including a brief filed by the United States, were filed in support of this court’s current written description doctrine. The court heard oral arguments on December 7, 2009. DISCUSSION I. Although the parties differ in their answers to the court’s questions, their positions converge more than they first appear. Ariad, in answering the court’s first question, argues that § 112, first paragraph, does not contain a written description requirement separate from enablement. Yet, in response to this court’s second question on the scope and purpose of a written description requirement, Ariad argues that the statute contains two description" }, { "docid": "3321281", "title": "", "text": "2004. . The Regents of the University of California, et al. filed an amici curiae brief. NEWMAN, Circuit Judge, dissenting from the denial of rehearing en banc. I respectfully dissent from the court’s decision not to resolve en banc the burgeoning conflict in pronouncements of this court concerning the written description and enablement requirements of the Patent Act. This question has been promoted from simple semantics into a fundamental conflict concerning patent scope and the support needed to claim biological products. The appropriate forum is now the en banc tribunal, not continuing debate in panel opinions applying divergent law. I fully share Judge Lourie’s understanding of the law. The continuing attack on well-established and heretofore unchallenged decisions such as Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563 (Fed.Cir.1991) (“we hereby reaffirm, that 35 U.S.C. § 112, first paragraph, requires a ‘written description of the invention’ which is separate and distinct from the enablement requirement”) and earlier cases such as In re Ruschig, 54 C.C.P.A. 1551, 379 F.2d 990 (CCPA 1967) (written description is one of three distinct requirements under 35 U.S.C. § 112) is not only unwarranted, but is disruptive of the stability with which this court is charged. If precedent has become obsolete or inapplicable, we should resolve the matter as a court and again speak with one voice. The new biology has indeed raised new and important questions, with implications for policy as well as law. However, the answer is not the simplistic one espoused by some commentators; it is simply incorrect to say that there is not now and never has been a “written description” requirement in the patent law. It has always been necessary to disclose and describe what is patented. It has never been the law that one can claim what is not made known and set forth in the patent. Various past decisions have been offered to support the exotic proposition that it is not necessary for the inventor to describe the patented invention, but that enablement alone suffices under the statute. These cases concern traditional issues of generic disclosures and specific examples, and" }, { "docid": "22859095", "title": "", "text": "occasions, and upheld them once. Finally, the BPAI rejected written description challenges on twenty-two occasions, while upholding them only nine times. Id. at 26-78. Furthermore, Holman discusses each of the cases before the courts and the BPAI where a challenge under the written description requirement was upheld and argues that in most cases the patent would have also been invalid for lack of enablement or that the court or BPAI substantially blurred the line between enablement and written description. Id. at 78-79. RADER, Circuit Judge, with whom LINN, Circuit Judge, joins, dissenting-in-part and concurring-in-part. The Constitution of the United States gives Congress, not the courts, the power to promote the progress of the useful arts by securing exclusive rights to inventors for limited times. Art. I, § 8, cl. 8. Yet this court proclaims itself the body responsible for achieving the “right balance” between upstream and downstream innovation. Ante at 1353. The Patent Act, however, has already established the balance by requiring that a patent application contain “a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains ... to make and use the same.” 35 U.S.C. § 112, ¶ 1 (emphasis added). In rejecting that statutory balance in favor of an undefined “written description” doctrine, this court ignores the problems of standardless decision making and serious conflicts with other areas of patent law. Because the Patent Act already supplies a better test, I respectfully dissent. I. The frailties of this court’s “written description” doctrine have been exhaustively documented in previous opinions. See, e.g., Enzo Biochem, Inc. v. Gen-Probe Inc., 323 F.3d 956, 976 (Fed.Cir.2002) (Rader, J., dissenting from denial of rehearing en banc); id. at 987 (Linn, J., dissenting from denial of rehearing en banc); Moba, B.V. v. Diamond Automation, Inc., 325 F.3d 1306, 1322 (Fed.Cir.2003) (Rader, J., concurring); id. at 1327 (Bryson, J., concurring); Univ. of Rochester v. G.D. Searle & Co., Inc., 375 F.3d 1303, 1307 (Fed.Cir.2004) (Rader, J., dissenting" }, { "docid": "3321280", "title": "", "text": "ORDER LARIMER, Judge. A petition for rehearing en banc was filed by the Appellant, and a response thereto was invited by the court and filed by the Appellees. This matter was referred first as a petition for rehearing to the merits panel that heard this appeal. Thereafter, the petition for rehearing en banc, response, and the amici curiae brief were referred to the circuit judges who are authorized to request a poll whether to rehear the appeal en banc. A poll was requested, taken, and failed. Upon consideration thereof, IT IS ORDERED THAT: (1) The petition for rehearing is denied. (2) The petition for rehearing en banc is denied. NEWMAN, Circuit Judge, dissents in a separate opinion. LOURIE, Circuit Judge, concurs in a separate opinion. RADER, Circuit Judge, with whom GAJARSA and LINN, Circuit Judges, join, dissents in a separate opinion. LINN, Circuit Judge, with whom RADER and GAJARSA, Circuit Judges, join, dissents in a separate opinion. DYK, Circuit Judge, concurs in a separate opinion. The mandate of the court will issue on July 9, 2004. . The Regents of the University of California, et al. filed an amici curiae brief. NEWMAN, Circuit Judge, dissenting from the denial of rehearing en banc. I respectfully dissent from the court’s decision not to resolve en banc the burgeoning conflict in pronouncements of this court concerning the written description and enablement requirements of the Patent Act. This question has been promoted from simple semantics into a fundamental conflict concerning patent scope and the support needed to claim biological products. The appropriate forum is now the en banc tribunal, not continuing debate in panel opinions applying divergent law. I fully share Judge Lourie’s understanding of the law. The continuing attack on well-established and heretofore unchallenged decisions such as Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563 (Fed.Cir.1991) (“we hereby reaffirm, that 35 U.S.C. § 112, first paragraph, requires a ‘written description of the invention’ which is separate and distinct from the enablement requirement”) and earlier cases such as In re Ruschig, 54 C.C.P.A. 1551, 379 F.2d 990 (CCPA 1967) (written description is one of" }, { "docid": "3321285", "title": "", "text": "informed and more enduring final pronouncement by this Court. Arizona v. Evans, 514 U.S. 1, 24 n. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). This question has percolated enough; it is ripe for en banc resolution. . LOURIE, Circuit Judge, concurring. I concur in the decision of the court not to rehear this case en- banc, just as previ-' ously the court also declined to hear a written description case en banc. See Enzo Biochem, Inc. v. Gen-Probe, Inc., 323 F.3d 956, 970-75 (Fed.Cir.2002). That is because this .case was properly decided based on one of the grounds relied on by the district court in invalidating the Rochester patent, see Univ. of Rochester v. G.D. Searle & Co., 358 F.3d 916 (Fed.Cir.2004), the analysis of which will not be repeated here. Contrary to the assertions of the appellant, certain amici, and some of the dissenters, there is and always has been a separate written description requirement in the patent law. The requirement to describe one’s invention is basic to the patent law, and every patent draftsman knows that he or she must describe a client’s invention independently of the need to enable one skilled in the relevant art to make and use the invention. The specification then must also describe how to make and use the invention (i.e., enable it), but that is a. different task. The requirements of the statute cannot be swept away by claiming that it relates only to priority issues or that the prohibition on introduction of new matter takes care of the need for a written description. The statute does not contain a limitation that it pertains only to priority issues. Moreover, the prohibition on introduction of new matter (35 U.S.C. § 132) is not a substitute for the written description requirement. Section 282 of the Patent Act lists as a defense to an infringement action invalidity arising from a failure to comply with a requirement of section 112 of the Act, which includes written description. In contrast, the new matter provision, section 132, appears in a provision entitled “Notice of rejection; reexamination;” Failure" }, { "docid": "3321325", "title": "", "text": "that this court and its predecessor have repeatedly held that claimed subject matter ‘need not be described in haec verba’ in the specification to satisfy the written description requirement, it is also true that the requirement must still be met in some way so as to ‘describe the claimed invention so that one skilled in the art can recognize what is claimed.’ ” (citations omitted)). There is simply no reason to interpret section 112 to require applicants for patent to set forth the metes and bounds of the claimed invention in two separate places in the appli cation. That is the exclusive function of the claims. The burden of Lilly and Enzo has fallen on the biotech industry disproportionately, but, as this decision makes clear, the new-found written description requirement will affect all fields of emerging technology. Univ. of Rochester, 358 F.3d at 925 (rejecting a limitation of the Lilly written description doctrine to genetic inventions on the ground that “the statute applies to all types of inventions”). When patent attorneys set out to write patent applications, they do so for an educated audience— those skilled in the art — and attempt to describe the invention in a way that enables those of ordinary skill to make and use the invention as claimed. Before the decision in Lilly, the practicing bar had accepted and found workable the notion elucidated in our precedent that § 112 requires a written description sufficient to enable one of ordinary skill in the art to make and use the claimed invention — i.e., enablement. Lilly changed the landscape and set in motion the debate the panel opinion in this case perpetuates. As I commented in my dissent from the court’s decision not to hear the Enzo case en banc, “Some have praised Lilly for maintaining the integrity of patent disclosures and for curbing patent filings for inventions that have not yet been made but are just nascent ideas. Others have been sharply critical of Lilly.” Enzo Biochem, Inc. v. Gen-Probe Inc., 323 F.3d 956, 989 (Fed.Cir.2002) (Linn, J., dissenting). That debate continues to leave uncertain" }, { "docid": "19667052", "title": "", "text": "power to do so is immaterial, however, because we are bound to follow our own precedent. As noted, even before the PTO amended its rule to expressly state that a material reference is non-cumulative, our cases consistently held that a cumulative reference is not material for purposes of inequitable conduct. There has never been an exception for anticipatory cumulative references, and we are not inclined to create one now. Because Gennum has failed to show clear error in the trial court’s finding that the LM 1881 chip was not material and has not established that the trial court abused its discretion by applying the wrong law, we affirm the trial court’s judgment that the '250 patent is not unenforceable due to inequitable conduct. IV. Validity of Claim 31 of the '869 Patent The trial court concluded that claim 31 was not invalid for any of the reasons asserted by Gennum: failure to satisfy the written description and enablement requirements of 35 U.S.C. § 112, ¶ 1, and indefiniteness under 35 U.S.C. § 112, ¶ 2. On cross-appeal, Gennum challenges only the trial court’s determination regarding indefiniteness, arguing that the claim is fatally indefinite because there is no structure in the written description corresponding to limitation (a). That limitation reads: “circuitry to provide a format signal changeable in response to the format of said video type signal.” '869 patent col.1711.46-47. The trial court held, and the parties agree, that the limitations in claim 31, including limitation (a), should be construed as means-plus-function limitations in accordance with 35 U.S.C. § 112, ¶ 6. Judge Rich, writing for the en banc court, explained the relationship between the second and sixth paragraphs of section 112: [I]f one employs means-plus-function language [per paragraph 112-6] in a claim, one must set forth in the specification an adequate disclosure showing what is meant by that language. If an applicant fails to set forth an adequate disclosure, the applicant has in effect failed to particularly point out and distinctly claim the invention as required by the second paragraph of section 112. In Re Donaldson Co., 16 F.3d 1189," }, { "docid": "3321284", "title": "", "text": "F.3d 1348, 1357 (Fed.Cir.2004) (Newman, J., dissenting). If the majority of this court is nonetheless sympathetic to that position, there should be careful consideration of the implications of precedent,, for the law is that “Section 112 requires that the application describe, enable, and set forth the best mode of carrying out the invention.” Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 724, 122 S.Ct. 1831, 152 L.Ed.2d 944 (2002). The issue of whether patent law contains a separate written description requirement has percolated through various panels of this court, on a variety of facts. The differences of opinion among the judges of the Federal Circuit, are, in microcosm, the “percolation” that scholars feared would be lost by a national court at the circuit level. Percolation is the great justifier of conflict among the regional circuits. In the words of the Supreme Court: We have in many instances recognized that when frontier legal problems are presented, periods of “percolation” in, and diverse opinions from, state and federal appellate courts may yield a better informed and more enduring final pronouncement by this Court. Arizona v. Evans, 514 U.S. 1, 24 n. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). This question has percolated enough; it is ripe for en banc resolution. . LOURIE, Circuit Judge, concurring. I concur in the decision of the court not to rehear this case en- banc, just as previ-' ously the court also declined to hear a written description case en banc. See Enzo Biochem, Inc. v. Gen-Probe, Inc., 323 F.3d 956, 970-75 (Fed.Cir.2002). That is because this .case was properly decided based on one of the grounds relied on by the district court in invalidating the Rochester patent, see Univ. of Rochester v. G.D. Searle & Co., 358 F.3d 916 (Fed.Cir.2004), the analysis of which will not be repeated here. Contrary to the assertions of the appellant, certain amici, and some of the dissenters, there is and always has been a separate written description requirement in the patent law. The requirement to describe one’s invention is basic to the patent law, and every" }, { "docid": "22859090", "title": "", "text": "specification of the '516 patent, and therefore cannot constitute substantial evidence. Besides, possession of an invention must be shown by written description in the patent application, and that was not shown here. See Rochester, 358 F.3d at 926 (\"After all, it is in the patent specification where the written description requirement must be met.\"). GAJARSA, Circuit Judge, concurring. I join the opinion of the court, but write separately to explain my reasons for doing so. Whether there is a free standing written description requirement pursuant to § 112, ¶ 1 is a matter of statutory interpretation as the majority correctly notes. Maj. Op. at 1342^15. In my judgment, the text of § 112, ¶ 1 is a model of legislative ambiguity. The interpretation of the statute, therefore, is one over which reasonable people can disagree, and indeed, reasonable people have so disagreed for the better part of a decade. See, e.g., Univ. of Rochester v. G.D. Searle & Co., 375 F.3d 1303 (Fed.Cir.2004) (denial of rehearing en banc); Enzo Biochem, Inc. v. Gen-Probe Inc., 323 F.3d 956 (Fed.Cir.2002) (denial of rehearing en banc). While not entirely free from doubt, the majority’s interpretation of § 112, ¶ 1 is reasonable, and for the need to provide some clarity to this otherwise conflicting area of our law, I concur with the majority’s opinion that the statute may be interpreted to set forth an independent written description requirement. I disagree, however, with those who view an independent written description requirement as a necessity of patent law. This court and the various amici curiae have spent considerable time and resources addressing whether § 112, ¶ 1 provides a distinct written description requirement wholly separate from enablement. Contrary to the representations of the Patent Office and the opinions of members of this court, I do not believe that this issue has a significant, practical impact. See Government Br. at 19 (claiming written description serves an “indispensable role in the administration of the patent system”); Moba, B.V. v. Diamond Automation, Inc., 325 F.3d 1306, 1322 (Rader, J., concurring) (“By making written description a free-standing disclosure doctrine," }, { "docid": "22859126", "title": "", "text": "the majority’s policy justifications for applying written description to original claims. The majority accepts Lilly’s argument that, “while an original claim is part of the specification, this fact does not mean that original claims must always be an adequate written description of the invention.” Lilly’s Br. 35. This debate is not new. See Univ. of Rochester v. G.D. Searle & Co., 375 F.3d 1303, 1307 (Fed.Cir.2004) (Lourie, J., concurring) (“Thus, the fact that a statement of an invention is in an original claim does not necessarily end all inquiry as to the satisfaction of the written description requirement.”). However, the policy reasons for applying such a requirement to original claims remain unconvincing. It is beyond dispute that original claims are part of a patent’s disclosure. See id. (Lourie, J., concurring) (“As for the proposition that an original claim is part of the written description, that is clear.”). And our predecessor court repeatedly held that, as part of the disclosure, “original claims constitute their own description.” In re Koller, 613 F.2d 819, 823 (CCPA 1980); see also In re Smith, 481 F.2d 910, 914 (CCPA 1973) (“Where the claim is an original claim, the underlying concept of insuring disclosure as of the filing date is satisfied, and the description requirement has likewise been held to be satisfied.”); In re Gardner, 475 F.2d 1389, 1391 (CCPA 1973) (holding that an original claim sufficiently described itself, and that “[njothing more is necessary for compliance with the description requirement of the first paragraph of 35 U.S.C. § 112”), reh’g denied, 480 F.2d 879, 879-80 (CCPA 1973) (“Under these circumstances, we consider the original claim in itself adequate ‘written description’ of the claimed invention.”). Thus, as I have said before, “[f]or original claims, ... the claim itself evidences] possession of the invention as of the filing date.” Enzo Biochem, Inc. v. Gen-Probe Inc., 323 F.3d 956, 988 (Fed.Cir.2002) (Linn, J., dissenting). It is inconsistent to say that on its filing date, a patent does not show that the inventor “possessed” subject matter that the claims actually encompass and the specification fully enables. Doing so perpetuates" }, { "docid": "22859096", "title": "", "text": "the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains ... to make and use the same.” 35 U.S.C. § 112, ¶ 1 (emphasis added). In rejecting that statutory balance in favor of an undefined “written description” doctrine, this court ignores the problems of standardless decision making and serious conflicts with other areas of patent law. Because the Patent Act already supplies a better test, I respectfully dissent. I. The frailties of this court’s “written description” doctrine have been exhaustively documented in previous opinions. See, e.g., Enzo Biochem, Inc. v. Gen-Probe Inc., 323 F.3d 956, 976 (Fed.Cir.2002) (Rader, J., dissenting from denial of rehearing en banc); id. at 987 (Linn, J., dissenting from denial of rehearing en banc); Moba, B.V. v. Diamond Automation, Inc., 325 F.3d 1306, 1322 (Fed.Cir.2003) (Rader, J., concurring); id. at 1327 (Bryson, J., concurring); Univ. of Rochester v. G.D. Searle & Co., Inc., 375 F.3d 1303, 1307 (Fed.Cir.2004) (Rader, J., dissenting from denial of rehearing en banc); id. at 1325 (Linn, J., dissenting from denial of rehearing en banc); Lizardtech, Inc. v. Earth Res. Mapping, Inc., 433 F.3d 1373, 1376 (Fed.Cir.2006) (Rader, J., dissenting from denial of rehearing en banc); Ariad Pharms., Inc. v. Eli Lilly & Co., 560 F.3d 1366, 1380 (Fed.Cir.2009) (Linn, J., concurring). These earlier writings document the embárrassingly thin (perhaps even mistaken) justifications for the minting of this new description doctrine in 1997 and the extensive academic criticism of this product of judicial imagination. For present purposes I will only recount those frailties of this court’s relatively recent justifications for a doctrine of its own making. First and foremost, the separate written description requirement that the court petrifies today has no statutory support. As noted, § 112, first paragraph, reads as follows: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which" }, { "docid": "22859125", "title": "", "text": "forth the best mode,” and that “exclusive patent rights are given in exchange for disclosing the invention to the public.” Id. at 736, 122 S.Ct. 1831. Neither of these statements is a holding that written description applies to originally filed claims, or even that enablement is not the sole measure of disclosure. With all due respect, characterizing Festo as an endorsement of modern written description is at best misplaced. Until our 1997 decision in Lilly, we applied a written description doctrine from § 112, paragraph 1 to control patent applicants’ claims to priority, but not to invalidate originally filed claims, and without any perceived inconsistency with the statute. E.g., In re Rasmussen, 650 F.2d 1212, 1214 (CCPA 1981) (“The proper basis for rejection of a claim amended to recite elements thought to be without support in the original disclosure, therefore, is § 112, first paragraph....”). Only since Lilly have we forced original claims over a description hurdle extending beyond enablement. D. Original Claims In addition to rejecting the majority’s precedent-based arguments, I part ways with the majority’s policy justifications for applying written description to original claims. The majority accepts Lilly’s argument that, “while an original claim is part of the specification, this fact does not mean that original claims must always be an adequate written description of the invention.” Lilly’s Br. 35. This debate is not new. See Univ. of Rochester v. G.D. Searle & Co., 375 F.3d 1303, 1307 (Fed.Cir.2004) (Lourie, J., concurring) (“Thus, the fact that a statement of an invention is in an original claim does not necessarily end all inquiry as to the satisfaction of the written description requirement.”). However, the policy reasons for applying such a requirement to original claims remain unconvincing. It is beyond dispute that original claims are part of a patent’s disclosure. See id. (Lourie, J., concurring) (“As for the proposition that an original claim is part of the written description, that is clear.”). And our predecessor court repeatedly held that, as part of the disclosure, “original claims constitute their own description.” In re Koller, 613 F.2d 819, 823 (CCPA 1980); see" }, { "docid": "22859089", "title": "", "text": "the inventors of the '516 patent, among the most skilled artisans in their field in the world at this time, failed to correctly disclose the structure of I-éB even two years after the application was filed is a strong sign that one of skill in the art could not be expected to provide this knowledge in 1989. . Dr. Kadesch testified that the scientists who conducted the decoy molecule study published in November 1990 would likely have mastered their technique prior to the filing of the '516 patent application in April 1989. Perhaps so, but this fact is not in evidence, and even if it were true, one research group does not necessarily represent the knowledge of one of ordinary skill in the art without further testimony to support that contention. . Dr. Kadesch certainly offered a general conclusion that he thought the inventors were in possession of the claimed invention in 1989. This conclusory testimony, as shown infra, is devoid of any factual content upon which the jury could have relied when considering the specification of the '516 patent, and therefore cannot constitute substantial evidence. Besides, possession of an invention must be shown by written description in the patent application, and that was not shown here. See Rochester, 358 F.3d at 926 (\"After all, it is in the patent specification where the written description requirement must be met.\"). GAJARSA, Circuit Judge, concurring. I join the opinion of the court, but write separately to explain my reasons for doing so. Whether there is a free standing written description requirement pursuant to § 112, ¶ 1 is a matter of statutory interpretation as the majority correctly notes. Maj. Op. at 1342^15. In my judgment, the text of § 112, ¶ 1 is a model of legislative ambiguity. The interpretation of the statute, therefore, is one over which reasonable people can disagree, and indeed, reasonable people have so disagreed for the better part of a decade. See, e.g., Univ. of Rochester v. G.D. Searle & Co., 375 F.3d 1303 (Fed.Cir.2004) (denial of rehearing en banc); Enzo Biochem, Inc. v. Gen-Probe Inc., 323" }, { "docid": "3321319", "title": "", "text": "\"properly rejected on the prior art”). The CCPA decided the Sus case under paragraph 2 of § 112, not paragraph 1. In re Sus, 49 C.C.P.A. 1301, 306 F.2d 494, 496 (CCPA 1962). The reason Sus and Moore do not appear on the \"written description” landscape is because subsequent case law made it clear that, outside the priority context, the substantive test for compliance with the first paragraph of § 112 is enablement. In re Borkowski, 57 C.C.P.A. 946, 422 F.2d 904, 909 (CCPA 1970). Indeed, Rochester seems to do a disservice to the CCPA’s own acknowledgement that Judge Rich inaugurated the written description requirement to police priority in 1967. In re Rasmussen, 650 F.2d 1212, 1214 (CCPA 1981). LINN, Circuit Judge, with whom RADER and GAJARSA, Circuit Judges, join, dissenting from the court’s decision not to hear the case en banc. The panel opinion in this case perpetuates the confusion our precedent in Lilly and Enzo has engendered in establishing “written description” as a separate requirement of 35 U.S.C. § 112, paragraph 1, on which a patent may be held invalid. That precedent should be overturned. Accordingly, I respectfully dissent from the court’s decision not to hear this case en banc. Section 112 of Title 35 of the United States Code requires a written description of the invention, but the measure of the sufficiency of that written description in meeting the conditions of patentability in paragraph 1 of that statute depends solely on whether it enables any person skilled in the art to which the invention pertains to make and use the claimed invention and sets forth the best mode of carrying out the invention. The question presented by 35 U.S.C. § 112, paragraph 1, is not, “Does the written description disclose what the invention is?” The question is, “Does the written description describe the invention recited in the claims — themselves part of the specification — in terms that are sufficient to enable one of skill in the art to make and use the claimed invention and practice the best mode contemplated by the inventor?” That is the" }, { "docid": "22859097", "title": "", "text": "from denial of rehearing en banc); id. at 1325 (Linn, J., dissenting from denial of rehearing en banc); Lizardtech, Inc. v. Earth Res. Mapping, Inc., 433 F.3d 1373, 1376 (Fed.Cir.2006) (Rader, J., dissenting from denial of rehearing en banc); Ariad Pharms., Inc. v. Eli Lilly & Co., 560 F.3d 1366, 1380 (Fed.Cir.2009) (Linn, J., concurring). These earlier writings document the embárrassingly thin (perhaps even mistaken) justifications for the minting of this new description doctrine in 1997 and the extensive academic criticism of this product of judicial imagination. For present purposes I will only recount those frailties of this court’s relatively recent justifications for a doctrine of its own making. First and foremost, the separate written description requirement that the court petrifies today has no statutory support. As noted, § 112, first paragraph, reads as follows: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. This language, while cumbersome, is unambiguous. It says that the written descriptions of the invention and of the manner and process of making and using the invention are both judged by whether they are in such full, clear, concise, and exact terms as to enable a person skilled in the art to make and use the invention. The reason for a description doctrine is clear: to ensure that the inventor fully discloses the invention in exchange for an exclusive right. The test for the adequacy of the specification that describes the invention is also clear: Is the description sufficient to enable a person of ordinary skill in the art to make and use the claimed invention? Nowhere does the paragraph require that the inventor satisfy some quixotic possession requirement. This court, however, calves the “written description of the invention” language out of its" }, { "docid": "3321296", "title": "", "text": "at 987-89 (Linn, J., dissenting). That debate continued in this court’s subsequent cases. See, e.g., Moba B.V. v. Diamond Automation, Inc., 325 F.3d 1306, 1323 (Fed.Cir.2003) (Rader, J., concurring) (explaining that juries face the “cumbersome task” of deciding that “the patent’s disclosure can enable a skilled artisan to make and practice the entire invention, but still not inform that same artisan that the inventor was in possession of the invention”). Indeed a brief survey of the literature on this topic, an astounding amount in a few short years, shows 31 articles criticizing the Eli Lilly doctrine, 7 articles defending the doctrine, and 16 neutrally commenting on the state of this evolving case law. In its brief requesting en banc reconsideration in Enzo Biochem, the United States issued a call for clarity, which this court has yet to address: Although this Court has addressed the “written description” requirement of section 112 on a number of occasions, its decisions have not taken a clear and uniform position regarding the purpose and meaning of the requirement.... A review of the plain text of section 112, and the case law of this Court, reveals at least three different possible tests for an adequate “written description.” ... En banc consideration of the written description provision is appropriate so that the court can provide inventors, the public, and the USPTO with an authoritative interpretation of the provision. Brief of Amicus Curiae United States at 4-5,9. In sum, by any measure, the Eli Lilly doctrine has engendered confusion. After all, Eli Lilly created a new validity doctrine under 35 U.S.C. § 112, ¶ 1 separate from enablement and yet described it as “analogous to enablement.” 119 F.3d at 1569. Unfortunately, this court has passed up another opportunity to resolve the confusion. Supreme Court’s Role in the Eli Lilly Doctrine In an effort to supply some coherent basis for its new validity doctrine, this court in Rochester refers to an 1822 Supreme Court case that discusses the written description language of the Patent Act. Univ. of Rochester v. G.D. Searle & Co., Inc., 358 F.3d 916, 924 (Fed.Cir.2004)." }, { "docid": "3321326", "title": "", "text": "patent applications, they do so for an educated audience— those skilled in the art — and attempt to describe the invention in a way that enables those of ordinary skill to make and use the invention as claimed. Before the decision in Lilly, the practicing bar had accepted and found workable the notion elucidated in our precedent that § 112 requires a written description sufficient to enable one of ordinary skill in the art to make and use the claimed invention — i.e., enablement. Lilly changed the landscape and set in motion the debate the panel opinion in this case perpetuates. As I commented in my dissent from the court’s decision not to hear the Enzo case en banc, “Some have praised Lilly for maintaining the integrity of patent disclosures and for curbing patent filings for inventions that have not yet been made but are just nascent ideas. Others have been sharply critical of Lilly.” Enzo Biochem, Inc. v. Gen-Probe Inc., 323 F.3d 956, 989 (Fed.Cir.2002) (Linn, J., dissenting). That debate continues to leave uncertain how inventions are protected, how the United States Patent and Trademark Office discharges its responsibilities, and how business is conducted in emerging fields of law. These uncertainties will remain unless resolved by this court en banc or by the Supreme Court. The issue is important, is ripe for consideration, and deserves to be clarified, one way or the other. For these reasons, I respectfully dissent from the court’s refusal to consider this case en banc. DYK, Circuit Judge, concurring in the court’s decision not to hear the case en banc. In my view the question of whether 35 U.S.C. § 112 contains a written description requirement (separate from the enablement requirement) does not merit en banc review. For the reasons set forth in the panel opinion and in Judge Lourie’s opinion concurring in the denial of en banc review, I think it is clear that the statute contains such a requirement — applicable both in the context of priority and validity disputes. In this particular case the failure to satisfy that requirement was not even" }, { "docid": "5809058", "title": "", "text": "any particular distance between the contacts would have been mere “guesswork” and would have unnecessarily limited the scope of the claimed invention. See Verve, 311 F.3d at 1120. Hi Conclusion Accordingly, ATC has not shown by clear and convincing evidence that the use of the phrases “substantially monolithic” and “sufficiently close ... to form a first fringe-effect capacitance” made the '356 patent invalid due to lack of enablement. ATC has not shown that the jury’s verdict in this regard was against the great weight of the evidence. F. Written description Section 112 also requires that the patent’s specification contain a “written description of the invention.” 35 U.S.C. § 112. This requirement is independent of the enablement requirement, and is necessary “ ‘so that one skilled in the art can recognize what is claimed.’ ” Univ. of Rochester v. G.D. Searle & Co., Inc., 358 F.3d 916, 920-23 (Fed.Cir.2004) (citations omitted). While excessive description is not required, “generalized language may not suffice if it does not convey the detailed identity of an invention.” Id. at 923. The purpose of the written description is to ensure that “the patentee had possession of the claimed invention at the time of the application, i.e. that the patentee invented what is claimed.” LizardTech, Inc. v. Earth Res. Mapping, Inc., 424 F.3d 1336, 1344-45 (Fed.Cir.2005) (citations omitted); accord Ariad, 598 F.3d at 1351 (“In other words, the test for sufficiency is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.” (citations omitted)). As the Federal Circuit sitting en banc recently stated, “the hallmark of written description is disclosure.” Ariad, 598 F.3d at 1351. The test requires the court to look to the four corners of the specification from the perspective of a person of ordinary skill in the art and inquire whether the specification describes an invention understandable to that skilled artisan and shows that the inventor actually invented the invention claimed. Id. This inquiry is a question of fact and will necessarily vary" }, { "docid": "3321291", "title": "", "text": "material solely by its information-conveying character results in a “single means claim” purporting to claim everything that works, a dubious fulfillment of the requirement to “distinctly claim the subject matter” of the invention. 35 U.S.C. § 112. In any event, it is fact-intensive. But, once again, these matters go to whether the written description requirement has been met, not whether it exists. As for the proposition that an original claim is part of the written description, that is clear. See In re Gardner, 475 F.2d 1389, 1391 (CCPA 1973). However, the issue may still remain in a given case, especially with regard to generic claims, whether an original claim conveys that one has possession of and thus has invented species sufficient to constitute the genus. Thus, the fact that a statement of an invention is in an original claim does not necessarily end all inquiry as to the satis faction of the written description requirement. See Enzo, 323 F.3d at 968-69 (“[Rjegardless whether the claim appears in the original specification and is thus supported by the specification as of the filing date, § 112, ¶ 1 is not necessarily met.... If a purported description of an invention does not meet the requirements of the statute, the fact that it appears as an original claim or in the specification does not save it. A claim does not become more descriptive by its repetition, or its longevity”). In sum, I concur in the decision of the court not to rehear this case en banc. Our precedent is clear and consistent and necessitates no revision of written description law. . Circuit Judges Newman, Rader, Bryson, Ga-jarsa, and Linn voted in favor of en banc reconsideration. Chief Judge Mayer and Circuit Judges Michel, Lourie, Clevenger, Schall, Dyk, and Prost voted against en banc reconsideration. RADER, Circuit Judge, dissenting from the court’s decision not to hear the case en banc, with whom Circuit Judges GAJARSA and LINN, join. By a narrow margin, this court has declined to take this case en banc. Thus, this court avoids the opportunity to clarify and correct its confusing jurisprudence" }, { "docid": "3321292", "title": "", "text": "the specification as of the filing date, § 112, ¶ 1 is not necessarily met.... If a purported description of an invention does not meet the requirements of the statute, the fact that it appears as an original claim or in the specification does not save it. A claim does not become more descriptive by its repetition, or its longevity”). In sum, I concur in the decision of the court not to rehear this case en banc. Our precedent is clear and consistent and necessitates no revision of written description law. . Circuit Judges Newman, Rader, Bryson, Ga-jarsa, and Linn voted in favor of en banc reconsideration. Chief Judge Mayer and Circuit Judges Michel, Lourie, Clevenger, Schall, Dyk, and Prost voted against en banc reconsideration. RADER, Circuit Judge, dissenting from the court’s decision not to hear the case en banc, with whom Circuit Judges GAJARSA and LINN, join. By a narrow margin, this court has declined to take this case en banc. Thus, this court avoids the opportunity to clarify and correct its confusing jurisprudence on the new written description invalidity doctrine. In 1997, this court for the first time applied the written description language of 35 U.S.C. § 112, ¶ 1 as a general disclosure'requirement in place of enablement, rather than in its traditional' role as a doctrine to prevent applicants from adding new inventions to an older disclosure. Regents of the Univ. of Cal. v. Eli Lilly & Co., 119 F.3d 1559 (Fed.Cir.1997). In simple terms, contrary to logic and the statute itself, Eli Lilly requires one part of the specification (the written description) to provide “adequate support” for another part of the specification (the claims). Neither Eli Lilly nor this case has explained either the legal basis for this new validity requirement or the standard for “adequate support.” Because this new judge-made doctrine has created enormous confusion which this court declines to resolve, I respectfully dissent. Confusion in This New Validity Doctrine A recent case illustrates well the confusion engendered by this new doctrine. In Enzo Biochem, Inc. v. Gen-Probe, Inc., 323 F.3d 956 (Fed.Cir.2002), this court" } ]

[ { "docid": "22722535", "title": "", "text": "hearing requirement, see n. 1, supra, demonstrating that it no longer has any appreciable interest in defending the procedure at issue. Despite appellee Zimmerman Brush Company’s arguments, the recent decision in Parratt v. Taylor, 451 U. S. 527 (1981), is not to the contrary. There, a state employee negligently lost a prisoner’s hobby kit; while the Court concluded that the prisoner had suffered a deprivation of property within the meaning of the Fourteenth Amendment, it held that all the process due was provided by the State’s tort claims procedure. In such a situation, the Court observed, “[i]t is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place.” Id., at 541. The company suggests that Logan is complaining of the same type of essentially negligent deprivation, and that he therefore should be remitted to the tort remedies provided by the Illinois Court of Claims Act, Ill. Rev. Stat., ch. 37, ¶439.1 et seq. (1979). That statute allows an action “against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person.¶439.8(d). This argument misses Parrott’s point. In Parrott, the Court emphasized that it was dealing with “a tortious loss of . . . property as a result of a random and unauthorized act by a state employee . . . not a result of some established state procedure.” 451 U. S., at 541. Here, in contrast, it is the state system itself that destroys a complainant’s property interest, by operation of law, whenever the Commission fails to convene a timely conference — whether the Commission’s action is taken through negligence, maliciousness, or otherwise. Parratt was not designed to reach such a situation. See id., at 545 (second concurring opinion). Unlike the complainant in Parratt, Logan is challenging not the Commission’s error, but the “established state procedure” that destroys his entitlement without according him proper procedural safeguards. In any event, the Court’s decisions suggest that, absent “the necessity of quick action by the State or the impracticality of providing any predeprivation process,” a postdeprivation" } ]

[ { "docid": "5418645", "title": "", "text": "negligent deprivation of property by state officials. In contrast, plaintiff’s claim in this case involves an alleged intentional deprivation of a liberty interest. This Court does not believe that the Supreme Court intended the rationale of Parratt to extend beyond facts basically similar to those in that case — that is, when only a negligent deprivation of property is involved. This Court’s conclusion is supported by the opinions of those Justices who concurred in Justice Rehnquist’s opinion in Parratt. Justice Blackmun, wrote: I do not read the Court’s opinion as applicable to a case concerning deprivation of life or liberty. . . . Most importantly, I do not understand the Court to suggest that the provision of “post deprivation remedies” . . . within a state system would cure the unconstitutional nature of a state official’s inten tional act that deprives a person of property. 451 U.S. at 545, 101 S.Ct. at 1918, 68 L.Ed.2d at 435 (Blackmun, J., concurring). Justice Powell echoed those comments: The Due Process Clause imposes substantive limitations on state action, and under proper circumstances these limitations may extend to intentional and malicious deprivations of liberty and property, even where compensation is available under state law. Id. at 552-553, 101 S.Ct. at 1921-1922, 68 L.Ed.2d at 439—40 (Powell, J., concurring in the result). Despite the limitations understood by members of the Supreme Court to exist on the Parratt ruling, some lower courts have applied Parratt’s reasoning to claims involving other than negligent property deprivations. In Meshkov v. Abington Township, 517 F.Supp. 1280 (E.D.Pa.1981), for example, the court used Parratt to dismiss a negligent deprivation of life claim. In Meshkov, the plaintiff sued Abington Township and several members of the township’s police force after the policemen had allegedly negligently allowed the plaintiff’s son to hang himself while detained at the township police station in an unwatched cell. Relying on Parratt, the court ruled that because state law provided the plaintiff a tort action against the defendants, no due process violation existed and plaintiff therefore had no claim under section 1983. In a less drastic application of Parratt," }, { "docid": "18817283", "title": "", "text": "S.Ct. at 1413. Analyzed in light of this principle, the alleged loss of the tip of plaintiff’s finger resulting from the defendant’s negligent conduct deprived plaintiff of “liberty.” So, in ruling on defendants’ motion to dismiss for failure to state a claim, the court must also determine whether plaintiff has been deprived of his liberty without due process of law in violation of the fourteenth amendment. In deciding whether plaintiff’s allegations are sufficient to state a claim for deprivation of liberty without procedural due process, the court is aided by the Supreme Court’s decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) . The fourteenth amendment claim in Parratt was that prison officials negligently lost the plaintiff’s hobby kit, thereby depriving him of his property without due process of law. But the Court held that, unless the deprivation was pursuant to an established state practice or procedure, id. at 541, 101 S.Ct. at 1916, the property loss was not “without due process of law” if the state provided the plaintiff with a means by which he could seek redress for the deprivation. Id. at 543, 101 S.Ct. at 1916. In other words, the Supreme Court held that the “negligent loss of a prisoner’s property by a prison official was not a due process violation when the state provided an adequate postdeprivation remedy.” Palmer v. Hudson, 697 F.2d 1220 at 1222 (4th Cir.1983). The Court concluded in Parratt that the existence of a state statutory tort remedy allowing inmates to recover against state prison officials for negligent loss of property satisfied the requirements of due process. At least one court has held that the Parratt analysis applies “when only a negligent deprivation of property is involved.” Howse v. DeBerry Correctional Institute, 537 F.Supp. 1177, 1178 (M.D.Tenn.1982). Indeed, there is support for that position in two of the concurring opinions in Parratt. Justice Blackmun, with whom Justice White concurred, did not read the Court’s opinion “as applicable to a case concerning deprivation of life or of liberty,” 451 U.S. at 545, 101 S.Ct. at 1918, or" }, { "docid": "5487712", "title": "", "text": "resulting from the unauthorized acts of state officials which are not amenable to prior review is further reinforced by the concurring opinion of Justice Powell. Justice Powell argued that the alleged negligent loss of the plaintiff’s property by the state officials did not constitute a deprivation of property within the meaning of the fourteenth amendment. Id. at 546, 101 S.Ct. at 1918. And he criticized the Court’s focus on the adequacy of the postdeprivation remedy because such would make the fourteenth amendment a font of tort law whenever a state failed to provide a remedy. Id. at 550, 101 S.Ct. at 1920. In so doing, however, he recognized that the Court’s analysis applies to “negligent invasions of liberty or property interests.” Id. Moreover, Ingraham v. Wright, supra, is cited by the Court as being consistent with the approach taken in Parratt. 451 U.S. at 542 and 547, n. 1, 101 S.Ct. at 1916 and 1919, n. 1 (Powell, J., concurring in result). In Ingraham, the Court addressed the claim that corporal punishment in public schools violated due process. See 430 U.S. at 653, 97 S.Ct. at 1403. The Court held that corporal punishment in public schools did not deprive school children of liberty without due process of law because, among other things, “the traditional common-law remedies are fully adequate to afford due process.” Id. at 672, 97 S.Ct. at 1413. Parratt’s citation of Ingraham with approval is compelling evidence that the Court intended the Parratt analysis to apply to deprivations of liberty interests. Not all the justices who joined in the Court’s decision in Parratt believed that it applied to nonproperty deprivations. Justice Blackmun, with whom Justice White concurred, did “not read the Court’s opinion as applicable to a case concerning depriva tion of life or of liberty.” 451 U.S. at 545, 101 S.Ct. at 1918. But Justices Blackmun and White offered no persuasive reason for their distinction between property and non-property deprivations. Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), cited as different yet analogous precedent supporting this distinction, concerned" }, { "docid": "18817284", "title": "", "text": "plaintiff with a means by which he could seek redress for the deprivation. Id. at 543, 101 S.Ct. at 1916. In other words, the Supreme Court held that the “negligent loss of a prisoner’s property by a prison official was not a due process violation when the state provided an adequate postdeprivation remedy.” Palmer v. Hudson, 697 F.2d 1220 at 1222 (4th Cir.1983). The Court concluded in Parratt that the existence of a state statutory tort remedy allowing inmates to recover against state prison officials for negligent loss of property satisfied the requirements of due process. At least one court has held that the Parratt analysis applies “when only a negligent deprivation of property is involved.” Howse v. DeBerry Correctional Institute, 537 F.Supp. 1177, 1178 (M.D.Tenn.1982). Indeed, there is support for that position in two of the concurring opinions in Parratt. Justice Blackmun, with whom Justice White concurred, did not read the Court’s opinion “as applicable to a case concerning deprivation of life or of liberty,” 451 U.S. at 545, 101 S.Ct. at 1918, or the Court to suggest that a state tort remedy “would cure the unconstitutional nature of a state official’s intentional act that deprives a person of property.” Id. at 545-546, 101 S.Ct. at 1918. But “the separate opinions in Parratt [do not] give any persuasive basis on which to conclude that its holding does not encompass an intentional tort,” Palmer v. Hudson, at 1222. Similarly, there is no logical reason why the Parratt analysis should not apply to “nonproperty deprivations that do not implicate substantive constitutional guarantees.” Irshad v. Spann, 543 F.Supp. 922, 927 n. 1 (E.D.Va.1982). Parratt’s underlying principle is that a post-deprivation hearing will satisfy the requirements of procedural due process when there is no practical way to provide a predeprivation hearing. 451 U.S. at 541, 101 S.Ct. at 1916; Palmer v. Hudson, at 1222; Irshad v. Spann, 543 F.Supp. at 926-927. If “a post-deprivation remedy can cure an unintentional but negligent act causing injury [to property], inflicted by a state agent which is unamenable to prior review, then that principle applies as well" }, { "docid": "6312834", "title": "", "text": "under state law. Id. at 3204. The Supreme Court has not yet decided whether the Parratt and Hudson principles apply to negligent or intentional deprivations of life or liberty. In Parratt, Justices Blackmun and White joined the majority opinion only on the understanding that the decision did not apply to deprivations of life or liberty. 451 U.S. at 545, 101 S.Ct. at 1917 (Blackmun, J., concurring). On the other hand, the majority opinion was joined by five members of the Court in addition to Justices Blackmun and White, and it did not limit the decision’s reach solely to property deprivations. The lower federal courts are divided on this issue. Several courts, relying heavily on Justice Blackmun’s concurring opinion, have held that Parratt applies only to deprivations of property. See, e.g., Wilson v. Beebe, 743 F.2d 342, 350 (6th Cir.1984); Brewer v. Blackwell, 692 F.2d 387, 394-95 (5th Cir.1982); Wakinekona v. Olim, 664 F.2d 708, 715 (9th Cir.1981), rev’d on other grounds, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). Other courts have applied Parratt to deprivations of liberty interests. See, e.g., Thibodeaux v. Borde Ion, 740 F.2d 329, 334-38 (5th Cir.1984); Gilmere v. City of Atlanta, 737 F.2d 894, 905-10 (11th Cir.1984); Daniels v. Williams, 720 F.2d 792, 796 (4th Cir.1983), cert. granted,—U.S.-, 105 S.Ct. 1168, 84 L.Ed.2d 320 (1985); Haygood v. Younger, 718 F.2d 1472, 1478-81 (9th Cir.1983); see also King v. Pace, 575 F.Supp. 1385, 1388 n. 1 (D.Mass.1983). In addition, at least two courts have held that Parratt applies to deprivations of life. See State Bank of St. Charles v. Camic, 712 F.2d 1140, 1147 (7th Cir.) (jail suicide), cert. denied, 464 U.S. 993, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983); Meshkov v. Abington Township, 517 F.Supp. 1280, 1286 (E.D.Pa.1981) (jail suicide). Because the Court rules that Holland’s complaint may encompass a substantive due process claim, it is unnecessary to decide whether Parratt applies to a deprivation of life. A Fourteenth Amendment due process claim may allege a denial of either procedural or substantive due process, or both. Ramos v. Gallo, 596 F.Supp. 833, 837" }, { "docid": "22949698", "title": "", "text": "See Parratt v. Taylor, 451 U.S. 527, 536, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981) (hobby kit “unquestionably” falls within the definition of property). Defendants’ major argument is that the State of Louisiana has afforded McCrae all the process to which he is entitled. They rely on Parratt v. Taylor, supra, in which the Supreme Court held that the allegedly negligent loss by prison officials of an inmate’s hobby kit infringed a property interest protected by the Due Process Clause, but that the state’s tort-claims procedure provided all the process to which the inmate was constitutionally entitled. . Thus, defendants contend that the tort claim available to this plaintiff in the state courts represents a post-deprivation remedy fully sufficient to compensate plaintiff for his alleged loss. The facts surrounding the loss of property in this case differ from those in Parratt in only one important respect: here, plaintiff alleges that prison officials intentionally exposed his property to theft; in Parratt, the plaintiff alleged only negligence. We have applied Parratt several times to hold that adequate state post-deprivation remedies foreclose federal due process claims for negligent deprivation of property, see Burgess v. City of Houston, 718 F.2d 151 (5th Cir.1983); Thompson v. Steele, 709 F.2d 381 (5th Cir.1983); Loftin v. Thomas, 681 F.2d 364 (5th Cir.1982), but we have not before faced the question whether Parratt also forecloses a due process claim grounded on an allegedly intentional deprivation of property. Parratt neither expressly limited its holding to negligent deprivations nor clearly extended it to those occasioned by inten tional conduct. The plurality phrased the issue before it as one “involving a tortious loss of a prisoner’s property as a result of a random and unauthorized act by a state employee.” 451 U.S. at 541, 101 S.Ct. at 1916. “In such a case, the loss is not a result of some established state procedure and the State cannot predict precisely when the loss will occur. It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place.” Id. Justices White and Blackmun joined the" }, { "docid": "2145654", "title": "", "text": "at 539-41, 101 S.Ct. at 1915 (footnotes omitted). The Court reasoned that the justifications it had previously found sufficient to pretermit predeprivation process were applicable to deprivations of property arising from “a random and unauthorized act by a state employee”. Id. at 541, 101 S.Ct. at 1916. In such situations, “the loss is not a result of some established state procedure and the State cannot predict precisely when the loss will occur____ [I]t is not only impracticable, but impossible to provide a meaningful hearing before the deprivation.” Id. Applying this reasoning to the case before it, the Supreme Court held that the available postdeprivation remedy — a suit for damages under the state tort claims act — satisfied the requirements of due process. The Court concluded, therefore, that the alleged deprivation of property was not without due process of law, and that the plaintiff’s complaint failed to state a cause of action under section 1983. Id. at 543-44, 101 S.Ct. at 1916-17. Application of the Parratt decision by the federal district and circuit courts has hardly been a model example of uniform judicial decisionmaking. The courts have split on the principal question posed by the present ease: whether Parratt should apply to a negligent deprivation of a liberty interest. See Jackson v. City of Joliet, 1984, — U.S. ---, 104 S.Ct. 1325, 79 L.Ed.2d 720 (White, J., dissenting from the denial of certiorari); Haygood v. Younger, 9 Cir.1983, 718 F.2d 1472, 1479 (summarizing cases), reh’g en banc granted, Mar. 28, 1984; Juncker v. Tinney, D.Md.1982, 549 F.Supp. 574, 576 (summarizing cases). Although the plurality in Parratt did not distinguish between liberty and property interests, it phrased its analysis solely in terms of property deprivations. And Justices Blackmun and White joined with the plurality only on the understanding that the decision did not apply to deprivations of life or liberty or to intentional deprivations of property. See 451 U.S. at 545-46, 101 S.Ct. at 1917-18 (Blackmun, J., concurring). Some courts have seized upon these aspects of the Parratt decision to restrict that decision to its facts. See Howse v. DeBerry Correctional" }, { "docid": "6312833", "title": "", "text": "was deprived of property without due process of law when prison officials negligently lost his hobby kit. The Court held that the deprivation did not violate due process because of the availability of a post-deprivation damages remedy under state law. A state tort remedy may provide sufficient “due process” where a deprivation does not result from some established state procedure and the State cannot provide a meaningful hearing before the deprivation takes place. The Court emphasized, however, that in order to satisfy due process requirements, the state remedy must provide “some meaningful opportunity subsequent to the initial taking for a determination of rights and liabilities.” Id. at 541, 101 S.Ct. at 1916. On its facts, Parratt was limited to negligent deprivations of property. In Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Supreme Court extended the rationale of Parratt to intentional deprivations of property, holding that such deprivations do not violate the due process requirements of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available under state law. Id. at 3204. The Supreme Court has not yet decided whether the Parratt and Hudson principles apply to negligent or intentional deprivations of life or liberty. In Parratt, Justices Blackmun and White joined the majority opinion only on the understanding that the decision did not apply to deprivations of life or liberty. 451 U.S. at 545, 101 S.Ct. at 1917 (Blackmun, J., concurring). On the other hand, the majority opinion was joined by five members of the Court in addition to Justices Blackmun and White, and it did not limit the decision’s reach solely to property deprivations. The lower federal courts are divided on this issue. Several courts, relying heavily on Justice Blackmun’s concurring opinion, have held that Parratt applies only to deprivations of property. See, e.g., Wilson v. Beebe, 743 F.2d 342, 350 (6th Cir.1984); Brewer v. Blackwell, 692 F.2d 387, 394-95 (5th Cir.1982); Wakinekona v. Olim, 664 F.2d 708, 715 (9th Cir.1981), rev’d on other grounds, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). Other courts have applied" }, { "docid": "906814", "title": "", "text": "to that holding. On that federal question, we respectfully disagree with the Supreme Court of Hawaii. Nor do we think that the result in this case is affected by Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Parratt dealt with the negligent loss of a $23 hobby kit by prison officials, and the Court held that the prisoner was not deprived of his property without due process where there was a state tort claims statute that could afford full redress. That type of post-deprivation hearing was sufficient, in the Court’s view, to satisfy the fourteenth amendment. We do not believe that Parratt applies to the present case. The majority opinion in Parratt concentrates on the problems inherent in turning federal courts into forums for dealing with common law torts that are the regular business of state courts. 101 S.Ct. at 1917. The present case, dealing with a liberty interest, is of a wholly different nature. Indeed, Justice Blackmun’s concurring opinion (joined by Justice White) in Parratt suggests that the Parratt ruling is confined to deprivation of property. 101 S.Ct. at 1918. In short Parratt is simply a different case from the present one. It is true that there is general language in the majority opinion in Parratt suggesting that where a deprivation occurs because a state fails to follow its procedure rather than because it follows its procedure, and there is a state court remedy, then the state has provided all the process that is due. 101 S.Ct. at 1917. But this statement must be read in the context in which it was made, that of a tortious deprivation of property for which the state provides a tort remedy. A broader reading that would apply to the present case would remit all § 1983 cases to state courts whenever the conduct complained of violated state law as well as the federal Constitution. The result would be to read into § 1983 a requirement of exhaustion that has consistently been rejected by the federal courts. Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 481," }, { "docid": "22832058", "title": "", "text": "Prisoners Sue: A Study of Prisoner Section 1983 Cases in the Federal Courts, 92 Harv.L.Rev. 610 (1979). This expansion has strained the resources of the federal courts, and the frivolous nature of many of the claims has arguably led some courts to treat even those few with merit to little more than summary justice. See id. We trust, however, that the Court’s attempt to remedy the particular problem of frivolous prisoner suits in Parratt was not intended to extend to claims such as the one before us, which allege harms much graver than that involved in that case. . Some courts have adopted yet another limitation articulated by Justice Blackmun in Parratt; \"I do not read the Court’s opinion as applicable to a case concerning deprivation of life or liberty.” 451 U.S. at 545, 101 S.Ct. at 1918. (Blackmun, J., concurring). See, e.g., Wilson v. Beebe, 743 F.2d 342, 348 (6th Cir.1984); Brewer v. Blackwell, 692 F.2d 387 (5th Cir.1982). See also Hudson v. Palmer, — U.S. —, —, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984) (\"Parratt is necessarily limited by its facts to negligent deprivations of property.\"). Cf. Kimbrough v. O’Neil, 523 F.2d 1057, 1065 (7th Cir.1975) (Stevens, J., concurring) (distinguishing property deprivations from liberty deprivations on the ground that the former can be satisfied by a postdeprivation hearing), opinion on rehearing en banc, 545 F.2d 1059 (7th Cir.1976). This distinction is supported by the rationale that since Parratt's intent is to exclude the less egregious harms from the scope of constitutional analysis, and since life or liberty interests, unlike property interests, cannot be fully protected by affording postdeprivation remedies, only property rights are within the scope of the Parratt analysis. While we recognize that life and liberty hold a higher place than property in the hierarchy of constitutional interests, compare Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) (property interests are not created by the constitution, but are defined by independent standards such as state law) with Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974-75," }, { "docid": "22949701", "title": "", "text": "to afford one falsely arrested and detained the due process to which the Fourteenth Amendment entitled him. Id. at 395. We do not believe that a majority of the Supreme Court would accord different treatment to an intentional infringement of a liberty interest and an intentional infringement of a property interest. Negligent acts of state officers are logically incapable of prediction or prevention. Parratt, 451 U.S. at 541, 101 S.Ct. at 1916. Post-deprivation redress is the only process available in such cases, and recovery in tort will typically be sufficient for that purpose under Parratt. Control is more likely against intentional acts. “When it is possible for a State to institute procedures to contain and direct the intentional actions of its officials, it should be required, as a matter of due process, to do so.” Id. at 546, 101 S.Ct. at 1918 (Blackmun, J., concurring). We conclude that Parratt does not apply to procedural due process claims grounded in allegations of intentional deprivations of property by state officials. The disputed facts surrounding the deprivation in this case thus become quite material: if the factfinder concludes that defendants intentionally deprived plaintiff of his property, then plaintiff’s federal claim succeeds; if it concludes that at worst, defendants’ conduct was merely negligent, then Parratt forecloses plaintiff’s due process claim. Accordingly, the judgment of the district court is AFFIRMED insofar as it relates to plaintiff’s alleged denial of liberty without due process. It is REVERSED, however, with regard to the property claims and the case is REMANDED for further proceedings consistent with this opinion. . Defendants argue that, for the sake of determining subject matter jurisdiction, we are constrained as a court of limited jurisdiction to construe plaintiffs pro se complaint and other papers strictly. The argument is unfounded. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). . Plaintiff does not claim that he was denied an opportunity to speak in his own behalf. . Plaintiffs counsel was unable to say at oral argument whether these were the same four witnesses proffered by McCrae, but a review of plaintiffs" }, { "docid": "22949699", "title": "", "text": "adequate state post-deprivation remedies foreclose federal due process claims for negligent deprivation of property, see Burgess v. City of Houston, 718 F.2d 151 (5th Cir.1983); Thompson v. Steele, 709 F.2d 381 (5th Cir.1983); Loftin v. Thomas, 681 F.2d 364 (5th Cir.1982), but we have not before faced the question whether Parratt also forecloses a due process claim grounded on an allegedly intentional deprivation of property. Parratt neither expressly limited its holding to negligent deprivations nor clearly extended it to those occasioned by inten tional conduct. The plurality phrased the issue before it as one “involving a tortious loss of a prisoner’s property as a result of a random and unauthorized act by a state employee.” 451 U.S. at 541, 101 S.Ct. at 1916. “In such a case, the loss is not a result of some established state procedure and the State cannot predict precisely when the loss will occur. It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place.” Id. Justices White and Blackmun joined the Parratt opinion, but stated their understanding that the Parratt doctrine would not apply to deprivations of liberty interests or to deprivations of property caused by a state official’s intentional conduct. 451 U.S. at 545, 101 S.Ct. at 1918 (White, J., concurring); id. at 545-56, 101 S.Ct. at 1918 (Blackmun, J., concurring). Less than a year after Parratt was decided, the Court confined its holding in a fundamental respect. In Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), it held that an available post-deprivation tort remedy does not undermine the due process claim of a plaintiff who raises a constitutional flaw in an established state procedure. We have since interpreted Logan's “narrow reading” of Parratt, and especially its approving reference to Justice Blackmun’s Parratt concurrence, to prevent Parratt’s application in a case presenting an intentional deprivation of a protected liberty interest. Brewer v. Blackwell, 692 F.2d 387, 394-95 & 395 n. 11 (5th Cir.1982). In Brewer, we held that the “possibility” of post-deprivation state tort recovery did not suffice" }, { "docid": "14813671", "title": "", "text": "Officer Hudson was an unconstitutional search in violation of his Fourteenth Amendment right to privacy. A. In Parratt the Supreme Court held that the negligent loss of a prisoner’s property by a prison official was not a due process violation when the state provided an adequate postdeprivation remedy. Parratt’s scope cannot easily be limited to negligent deprivations of property. For, if the underlying principle is, as Justice Rehnquist stated in a plurality opinion, that when no practical way to provide a predeprivation hearing exists, a postdeprivation hearing will satisfy the dictates of procedural due process, then it as well applies to an intentional deprivation for which meaningful pri- or review was impractical. Accord Engblom v. Carey, 677 F.2d 957 (2 Cir.1982); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1352 (9 Cir.1981), cert. granted, sub nom. Kush v. Rutledge, 102 S.Ct. 3508, 73 L.Ed.2d 1382 (1982). Nor do we read any of the separate opinions in Parratt to give any persuasive basis on which to conclude that its holding does not encompass an intentional tort. It is true that four justices stated that they would limit Parratt’s scope to negligent acts, but no persuasive rationale was provided for doing so. Justice Blackmun, with whom Justice White concurred, agreed with the plurality that the impracticality of predeprivation review and the existence of a postdeprivation remedy was relevant to determining if an action violated due process. However, he suggested that the existence of a state tort remedy should not suffice to cure the unconstitutional nature of a state official’s intentional act, since an intentional act would rarely be amenable to prior review and since a state tribunal would be unlikely to provide due process when reviewing the deliberate conduct of the state’s employees. 451 U.S. at 545-546, 101 S.Ct. at 1918. Neither rationale for limiting Parratt’s scope obtains here for there is no practical mechanism by which Virginia could prevent its guards from conducting personal vendettas against prisoners other than by punishing them after the fact, nor have we been given any cause to believe that Virginia courts would be less" }, { "docid": "13184147", "title": "", "text": "possible for a State to institute procedures to contain and direct the intentional actions of its officials, it should be required, as a matter of due process, to do so.” Id. at 546, 101 S.Ct. at 1918, 68 L.Ed.2d at 435 (Blackmun, J., concurring) (emphasis added). Accord id. at 546, 101 S.Ct. at 1918, 68 L.Ed.2d at 435 (White, J., concurring); id. at 554, 101 S.Ct. at 1923, 68 L.Ed.2d at 441 (opinion of Marshall, J.). Justice Blackmun’s concurrence also draws a line between property and liberty interests. He “do[es] not read the Court's opinion as applicable to a case concerning deprivation of life or of liberty.” Id. at 545, 101 S.Ct. at 1918, 68 L.Ed.2d at 435. Accord id. at 545, 101 S.Ct. at 1918, 68 L.Ed.2d at 435 (White, J., concurring). Later, in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), the Court explained its decision in Parratt. The majority opinion, joined by seven members of the Court, cited Justice Blackmun’s concurring opinion in Parratt with approval. Id. at 436, 102 S.Ct., at 1158, 71 L.Ed.2d at 279. The Court held that Parratt was inapplicable to cases involving challenges to “the state system ... that destroys a complainant’s property interest, by operation of law ... whether the . .. action is taken through negligence, maliciousness, or otherwise.” Id. In this case, of course, it is not alleged that the state system was responsible for depriving the plaintiffs of their liberty. But given the Court’s citation of Justice Blackmun’s Parratt concurrence, and the Court’s narrow reading of Parratt in Logan, we decline to give Parratt the sweeping interpretation required to encompass the intentional deprivation of liberty involved in this case. See Wakinekona v. Olim, 664 F.2d at 715 & n. 1. Even though Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), involved an intentional deprivation of liberty, this case cannot be likened to Ingraham for the reasons pointed out in Logan. Ingraham held that state tort remedies provide adequate process for students subjected to corporal punishment in" }, { "docid": "18590360", "title": "", "text": "of law. The court concluded that the due process clause was not violated because plaintiff had an adequate state remedy. A pre-deprivation hearing was not practical and a post-deprivation hearing was available. Id. at 543, 101 S.Ct. at 1916. The court emphasized the need for this result. Otherwise, every injury caused by a state official under color of law would constitute a due process violation and would be actionable under section 1983. Id. at 544, 101 S.Ct. at 1917. Justices Stewart and Powell concurred, because they did not believe the claim rose to the level of a deprivation of property under the Constitution. Id. 544, 546, 101 S.Ct. 1917, 1918. Justices White and Blackmun emphasized that the opinion was limited to deprivations of property and did not encom pass deprivations of life or liberty. Id. at 545, 101 S.Ct. at (White and Blackmun concurring). In Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the court dealt with an intentional deprivation of property through an unauthorized act by a state employee. The court extended the holding in Parratt to include intentional deprivations of property where it was impractical to hold a pre-deprivation hearing and where an adequate state remedy existed. The court’s holding, however, was based on the fact that the action was unauthorized. We reasoned that where a loss of property is occasioned by a random, unauthorized act by a state employee, rather than by an established state procedure, the state cannot predict when the loss will occur. Id. 104 S.Ct. at 3203. The Court reasoned that while the action was under color of law, the unauthorized acts were beyond the control of the state. The Court then discussed Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). In Logan, the court reaffirmed Parratt but distinguished it. We specifically distinguished the case from Parratt by noting that “Parratt ... was dealing with a ... ‘random and unauthorized act by a state employee ... [and was] not a result of some established state procedure.’ ” Parratt, we said, “was not" }, { "docid": "1421013", "title": "", "text": "in and of themselves, antithetical to fundamental notions of due process.” Parratt v. Taylor, 451 U.S. at 545, 101 S.Ct. at 1918 (Blackmun, J., concurring). In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420, the Court concluded that a prisoner suffered a deprivation of property \"within the meaning of the Fourteenth Amendment when a state employee negligently lost the prisoner’s hobby kit. The Court, however, held that the State’s tort claims procedure provided all the process due. The defendants maintain that under Parratt Illinois provides due process via a judicial procedure to which plaintiffs could resort to compel the City to comply with § 9-104(a). This argument misses Parratt’s point. In Parratt, the Court emphasized that it confronted “a tortious loss of .. . property as a result of a random and unauthorized act by a state employee .. . not a result of some established state procedure.” 451 U.S. at 541, 101 S.Ct. at 1915. Therefore, the Court found it difficult “to conceive of how the State could provide a meaningful hearing before the deprivation takes place.” Id. Here, in contrast, the City has systematically deprived the plaintiffs of their State created right to immediate payment. Parratt does not reach such conduct. Logan v. Zimmerman Brush Co., 455 U.S. at 435, 102 S.Ct. at 1157. Logan supports Justice Blackmun’s view that the Parratt opinion has a narrow reach and does not “suggest that the provision of ‘postdeprivation remedies,’ . . . within a state system would cure the unconstitutional nature of a state official’s intentional act that deprives a person of property.” Parratt v. Taylor, 451 U.S. at 545-46, 101 S.Ct. at 1918 (Blackmun, J., concurring). Furthermore, the state remedies cited by the defendants have never been used to obtain compensation for the City’s use of judgment holder’s property during the time the City withheld payment without statutory authorization. See Bonner v. Coughlin, 517 F.2d 1311, 1319 (7th Cir. 1975), modified in banc, 545 F.2d 565 (1976), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978). We do not understand that Parratt" }, { "docid": "22949700", "title": "", "text": "Parratt opinion, but stated their understanding that the Parratt doctrine would not apply to deprivations of liberty interests or to deprivations of property caused by a state official’s intentional conduct. 451 U.S. at 545, 101 S.Ct. at 1918 (White, J., concurring); id. at 545-56, 101 S.Ct. at 1918 (Blackmun, J., concurring). Less than a year after Parratt was decided, the Court confined its holding in a fundamental respect. In Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), it held that an available post-deprivation tort remedy does not undermine the due process claim of a plaintiff who raises a constitutional flaw in an established state procedure. We have since interpreted Logan's “narrow reading” of Parratt, and especially its approving reference to Justice Blackmun’s Parratt concurrence, to prevent Parratt’s application in a case presenting an intentional deprivation of a protected liberty interest. Brewer v. Blackwell, 692 F.2d 387, 394-95 & 395 n. 11 (5th Cir.1982). In Brewer, we held that the “possibility” of post-deprivation state tort recovery did not suffice to afford one falsely arrested and detained the due process to which the Fourteenth Amendment entitled him. Id. at 395. We do not believe that a majority of the Supreme Court would accord different treatment to an intentional infringement of a liberty interest and an intentional infringement of a property interest. Negligent acts of state officers are logically incapable of prediction or prevention. Parratt, 451 U.S. at 541, 101 S.Ct. at 1916. Post-deprivation redress is the only process available in such cases, and recovery in tort will typically be sufficient for that purpose under Parratt. Control is more likely against intentional acts. “When it is possible for a State to institute procedures to contain and direct the intentional actions of its officials, it should be required, as a matter of due process, to do so.” Id. at 546, 101 S.Ct. at 1918 (Blackmun, J., concurring). We conclude that Parratt does not apply to procedural due process claims grounded in allegations of intentional deprivations of property by state officials. The disputed facts surrounding the deprivation in" }, { "docid": "7629830", "title": "", "text": "a result of some established state procedure.” 451 U.S., at 541, 101 S.Ct. at 1916. Here, in contrast, it is the state system itself that destroys a complainant’s property interest, by operation of law, whenever the Commission fails to convene a timely conference — whether the Commission’s action is taken through negligence, maliciousness, or otherwise. Parratt was not designed to reach such a situation. See id., at 545, 101 S.Ct. at 1917 (second concurring opinion). Unlike the complainant in Parratt, Logan is challenging not the Commission’s error, but the “established state procedure” that destroys his entitlement without according him proper procedural safeguards. 455 U.S. at 435-36, 102 S.Ct. at 1157-58. The reference in Logan to the second concurring opinion in Parratt was to that of Mr. Justice Blackmun who said, [w]hile the “random and unauthorized” nature of negligent acts by state employees makes it difficult for the State to “provide a meaningful hearing before the deprivation takes place,” ante, at 541 [101 S.Ct. at 1916], it is rare that the same can be said of intentional acts by state employees. When it is possible for a State to institute procedures to contain and direct the intentional actions of its officials, it should be required, as a matter of due process, to do so. See Sniadach v. Family Finance Corp., 395 U.S. 337 [89 S.Ct. 1820, 23 L.Ed.2d 349] (1969); Fuentes v. Shevin, 407 U.S. 67 [92 S.Ct. 1983, 32 L.Ed.2d 556] (1972); Goldberg v. Kelly, 397 U.S. 254 [90 S.Ct. 1011, 25 L.Ed.2d 287] (1970). In the majority of such cases, the failure to provide adequate process prior to inflicting the harm would violate the Due Process Clause. The mere availability of a subsequent tort remedy before tribunals of the same authority that, through its employees, deliberately inflicted the harm complained of, might well not provide the due process of which the Fourteenth Amendment speaks. 451 U.S. at 546, 101 S.Ct. at 1918. Thus, as I read Parratt and Logan, when a person is deprived of property as a result of a random and unauthorized act of a state employee," }, { "docid": "5418644", "title": "", "text": "deprived of his property “without due process.” In other words, even though the plaintiff had clearly been deprived of his property by persons acting “under color of state law,” as is necessary for a section 1983 action, the state’s post-deprivation tort remedy provided all the due process to which the plaintiff was there entitled. Thus, the plaintiff’s constitutional rights had not been violated, and he had no claim under section 1983. As Justice Rehnquist stated, “Nothing in [the fourteenth amendment] protects against all deprivations of life, liberty or property by the State. The Fourteenth Amendment protects only against deprivations ‘without due process of law.’ ” 451 U.S. at 537, 101 S.Ct. at 1913, 68 L.Ed.2d at 430. Defendants Hector and Foxx assert that the reasoning employed by the Supreme Court in Parratt applies with equal force to the facts of this case and dictates that plaintiff’s claim be' dismissed because Tennessee law ostensibly provides plaintiff a tort remedy against defendants. This Court does not agree. Parratt is inapposite here. As noted above, Parratt involved the negligent deprivation of property by state officials. In contrast, plaintiff’s claim in this case involves an alleged intentional deprivation of a liberty interest. This Court does not believe that the Supreme Court intended the rationale of Parratt to extend beyond facts basically similar to those in that case — that is, when only a negligent deprivation of property is involved. This Court’s conclusion is supported by the opinions of those Justices who concurred in Justice Rehnquist’s opinion in Parratt. Justice Blackmun, wrote: I do not read the Court’s opinion as applicable to a case concerning deprivation of life or liberty. . . . Most importantly, I do not understand the Court to suggest that the provision of “post deprivation remedies” . . . within a state system would cure the unconstitutional nature of a state official’s inten tional act that deprives a person of property. 451 U.S. at 545, 101 S.Ct. at 1918, 68 L.Ed.2d at 435 (Blackmun, J., concurring). Justice Powell echoed those comments: The Due Process Clause imposes substantive limitations on state action," }, { "docid": "13184146", "title": "", "text": "of the Peace Blackwell, second the claims against Chief McGehee, and finally the claims against the Town of Pearl River. II. At the outset, we must consider whether the plaintiffs’ claims are affected by the decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Parratt held that a state prisoner alleging a fourteenth amendment violation based on a negligent deprivation of property received the process due him because he had resort to a state tort claims procedure that “could have fully compensated [him] for the property loss he suffered .... ” Id. at 544, 101 S.Ct. at 1917, 68 L.Ed.2d at 434. Louisiana jurisprudence establishes that, had the plaintiffs proved the facts underlying their claims, a tort remedy would have been available in state court. Indeed, the plaintiffs acknowledged the existence of state remedies by raising pendent claims. Does the tort committed against them constitute a denial of their liberty without due process? Justice Blackmun’s concurring opinion in Parratt expressly distinguishes between negligent and intentional deprivations: “When it is possible for a State to institute procedures to contain and direct the intentional actions of its officials, it should be required, as a matter of due process, to do so.” Id. at 546, 101 S.Ct. at 1918, 68 L.Ed.2d at 435 (Blackmun, J., concurring) (emphasis added). Accord id. at 546, 101 S.Ct. at 1918, 68 L.Ed.2d at 435 (White, J., concurring); id. at 554, 101 S.Ct. at 1923, 68 L.Ed.2d at 441 (opinion of Marshall, J.). Justice Blackmun’s concurrence also draws a line between property and liberty interests. He “do[es] not read the Court's opinion as applicable to a case concerning deprivation of life or of liberty.” Id. at 545, 101 S.Ct. at 1918, 68 L.Ed.2d at 435. Accord id. at 545, 101 S.Ct. at 1918, 68 L.Ed.2d at 435 (White, J., concurring). Later, in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), the Court explained its decision in Parratt. The majority opinion, joined by seven members of the Court, cited Justice Blackmun’s concurring opinion in Parratt with" } ]

[ { "docid": "22114786", "title": "", "text": "the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (“ ‘[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated’”) (quoting S. Rep. No. 395, 43d Cong., 1st Sess., 9 (1874)). The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. See, e. g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966) (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U. S. 533, 555 (1964). There is no difference between the two sides of the present controversy on these basic propositions. Respondents say that the very purpose of vindicating the right to vote justifies the recount procedures now at issue. The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate. Much of the controversy seems to revolve around ballot cards designed to be perforated by a stylus but which, either through error or deliberate omission, have not been perforated with sufficient precision for a machine to register the perforations. In some cases" } ]

[ { "docid": "22114787", "title": "", "text": "the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U. S. 533, 555 (1964). There is no difference between the two sides of the present controversy on these basic propositions. Respondents say that the very purpose of vindicating the right to vote justifies the recount procedures now at issue. The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate. Much of the controversy seems to revolve around ballot cards designed to be perforated by a stylus but which, either through error or deliberate omission, have not been perforated with sufficient precision for a machine to register the perforations. In some cases a piece of the card — a chad — is hanging, say, by two corners. In other cases there is no separation at all, just an indentation. The Florida Supreme Court has ordered that the intent of the voter be discerned from such ballots. For purposes of resolving the equal protection challenge, it is not necessary to decide whether the Florida Supreme Court had the authority under the legislative scheme for resolving election disputes to define what a legal vote is and to mandate a manual recount implementing that definition. The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right. Florida’s basic command for the count of legally cast votes is to consider the “intent of the voter.” 772 So. 2d, at 1262. This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to" }, { "docid": "22254754", "title": "", "text": "citizens, but to “Electors” appointed by “[e]ach State.” U.S. Const. art. II, § 1; see also U.S. Const. amend. XII. Those electors, in turn, are selected in “such Manner” as the legislature of each state “may direct.” U.S. Const. art. II, § 1. That manner need not be by popular vote. Indeed, in the country’s early years, the legislatures of several states selected their electors directly. See Bush v. Gore, 531 U.S. 98, 104, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (citing McPherson v. Blacker, 146 U.S. 1, 28-33, 13 S.Ct. 3, 36 L.Ed. 869 (1892)). Nonetheless, “[h]istory has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors.” Id. The Virgin Islands is not a state but, as Mr. Ballentine acknowledges, an unincorporated territory of the United States. See, e.g., Bluebeard’s Castle, Inc. v. Gov’t of the Virgin Islands, 321 F.3d 394, 397 (3d Cir.2003). As such, it is not entitled to appoint electors. It is also established that citizens choosing to reside within its borders are not entitled to vote for electors even if they are denied a role in the selection of the President and Vice-President. See Bush, 531 U.S. at 104 (“The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”). The Court will grant Defendant’s motion to dismiss this claim, in accordance with similar suits involving residents of Puerto Rico and Guam. See Igartua-De La Rosa v. United States, 417 F.3d 145, 147 (1st Cir.2005) (“That the franchise for choosing electors is confined to ‘states’ cannot be ‘unconstitutional’ because it is what the Constitution itself provides.”); Attorney General of Territory of Guam v. United States, 738 F.2d 1017, 1019 (9th Cir.1984) (“Since Guam concededly is not a state, it can have no electors, and plaintiffs cannot exercise individual votes in a presidential election. There is no constitutional violation.”). B. United States Citizens Residing in" }, { "docid": "3089280", "title": "", "text": "166 L.Ed.2d 1 (2006). B. Likelihood of Success on the Merits 1. Equal Protection At the outset, we recognize the special importance of elections cases. “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.” Purcell, 549 U.S. at 4, 127 S.Ct. 5. At stake is “the ‘fundamental political right’ to vote,” id. (quoting Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), which we recognize as “ ‘preservative of all rights.’ ”) League of Women Voters of Ohio, 548 F.3d at 476 (quoting Yick Wo, 118 U.S. at 370, 6 S.Ct. 1064); see also Harper, 383 U.S. at 670, 86 S.Ct. 1079. Yet “the problem of equal protection in election processes generally presents many complexities.” Bush v. Gore, 531 U.S. 98, 109, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000). In part, this is because “[t]he right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.” Id. at 104, 121 S.Ct. 525 (citing Harper, 383 U.S. at 665, 86 S.Ct. 1079). Thus, we have held that “[t]he right to vote includes the right to have one’s vote counted on equal terms with others.” League of Women Voters, 548 F.3d at 476 (citing Bush, 531 U.S. at 104, 121 S.Ct. 525; Dunn, 405 U.S. at 336, 92 S.Ct. 995; Reynolds v. Sims, 377 U.S. 533, 567-68, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Wesberry v. Sanders, 376 U.S. 1, 7, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); Gray v. Sanders, 372 U.S. 368, 380, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); United States v. Classic, 313 U.S. 299, 315, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); United States v. Mosley, 238 U.S. 383, 386, 35 S.Ct. 904, 59 L.Ed. 1355 (1915); U.S. Const. amends. XV, XIX, XXIV, XXVI). “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104-05, 121 S.Ct. 525;" }, { "docid": "3089282", "title": "", "text": "see also League of Women Voters, 548 F.3d at 477 (“At a minimum, ... equal protection requires ‘nonarbitrary treatment of voters.’ ” (quoting Bush, 531 U.S. at 105, 121 S.Ct. 525)). We are therefore guided in our analysis by the important requirement that state actions in election processes must not result in “arbitrary and disparate treatment” of votes. Constitutional concerns regarding the review of provisional ballots by local boards of elections are especially great. As in a recount, the review of provisional ballots occurs after the initial count of regular ballots is known. See John Fortier, Foley on the Future of Bush v. Gore, 68 Ohio St. L.J. 1051, 1061 (2007). This particular post-election feature makes “specific standards to ensure ... equal application,” Bush, 531 U.S. at 106, 121 S.Ct. 525, particularly “necessary to protect the fundamental right of each voter” to have his or her vote count on equal terms, id. at 109, 121 S.Ct. 525. The lack of specific standards for reviewing provisional ballots can otherwise result in “unequal evaluation of ballots.” Id. at 106, 121 S.Ct. 525. Furthermore, the Board’s count of provisional ballots is a quasi-“adjudicatory-type” action which, unlike many “regulatory-type” actions, requires review of evidence with respect to a ballot’s validity. Edward B. Foley, Refining the Bush v. Gore Taxonomy, 68 Ohio St. L.J. 1035, 1037 (2007). In other words, the Board is exercising discretion “in making specific determinations about whether particular individuals will be permitted to cast a ballot that counts.” Id. In contrast to more general administrative decisions, the cause for constitutional concern is much greater when the Board is exercising its discretion in areas “relevant to the casting and counting of ballots,” like evaluating evidence of poll-worker error. Id.; cf. Bush, 531 U.S. at 109, 121 S.Ct. 525 (“The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.”). To satisfy both equal-protection and due-process rights, such a discretionary review must apply similar treatment to equivalent ballots. a. The Board’s Treatment of “Wrong-Precinct” Provisional Ballots In this case, Plaintiffs allege" }, { "docid": "3089323", "title": "", "text": "Ohio Republican Party (\"ORP”) disputes the application of this standard. In its view, the Equal Protection Clause has not been violated because there has been no showing of intentional discrimination on the part of the Board. Specifically, ORP argues that Hunter must show more than merely \" 'an erroneous or mistaken performance of [a] statutory duty.' \" ORP 2d Amicus Br. at 11 (quoting Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944)). Instead, ORP points to the requirement in Snowden that there be a showing of \" ‘an element of intentional or purposeful discrimination.... [A] discriminatory purpose is not presumed; there must be a showing of clear and intentional discrimination.' \" Id. (quoting Snow-den, 321 U.S. at 8, 64 S.Ct. 397 (internal citation and quotation marks omitted)). We do not agree. The Supreme Court has held in cases since Snowden that the Equal Protection Clause protects the right to vote from invidious and arbitrary discrimination. E.g., Williams v. Rhodes, 393 U.S. 23, 30, 34, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (holding that \" 'invidious' distinctions cannot be enacted without a violation of the Equal Protection Clause,” and that Ohio's laws limiting the ability of political parties to appear on the ballot constitute \"an invidious discrimination, in violation of the Equal Protection Clause”). In particular, the Court has spoken regarding the requirements of the Equal Protection Clause with respect to claims that a state is counting ballots inconsistently. See Bush, 531 U.S. at 104-05, 121 S.Ct. 525 (\"Equal protection applies ... to the manner of [the] exercise [of the right to vote]. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.”) (citing Harper, 383 U.S. at 665, 86 S.Ct. 1079); id. at 105, 121 S.Ct. 525 (\"The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate.”). Of great importance, a showing of" }, { "docid": "3611645", "title": "", "text": "at 233. An injunction “will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.” Mascio v. Pub. Emps. Ret. Sys. of Ohio, 160 F.3d 310, 312 (6th Cir.1998). B. The Wrong-Precinct Ballots 1. Likelihood of Success on the Merits The district court identified three strands of likely constitutional violations related to the wrong-precinct ballots as requiring injunctive relief: the unreasonableness and fundamental unfairness of disqualifying wrong-precinct ballots caused by poll-worker error (equal protection and due process), and the disparate treatment of deficient provisional ballots under the consent decree (equal protection). Having reviewed the record afresh, we agree on all counts. a. Equal Protection & Disqualification Despite Poll-Worker Error Our Constitution accords special protection for the fundamental right of voting, Harper, 383 U.S. at 670, 86 S.Ct. 1079, recognizing its essential role in the “preservation] of all rights,” Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Because “[o]ther rights, even the most basic, are illusory if the right to vote is undermined,” Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), “ ‘[t]he right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise,’ ” League of Women Voters v. Brunner, 548 F.3d 463, 477 (6th Cir.2008) (quoting Bush v. Gore, 531 U.S. 98, 104, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000)). At-the same time, the Constitution vests states with the authority to prescribe “[t]he Times, Places and Manner of holding Elections for Senators and Representatives.” U.S. Const. Art. I, § 4, cl. 1. “[W]hen a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify the restrictions.” Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (quoting Anderson, 460 U.S. at 788, 103 S.Ct. 1564). When equal protection challenges ask us to resolve these competing interests, we calibrate the equal protection" }, { "docid": "22341182", "title": "", "text": "For example, if one state counted ballots by hand while another counted by machine, there inevitably would be some ballots in the manual-recount state that were counted notwithstanding the fact that the identical ballot in the machine-count state would not be counted. The only apparent way to avoid this disparity would be for every state to use an identical method of counting. No court has held that the mere use of different methods of counting ballots constitutes an equal protection violation. Such a position would be manifestly inconsistent with the command of Article II, Section 1, Clause 2, that Presidential electors are to be appointed in the manner directed by each state legislature. Accord Anderson, 460 U.S. at 796 n. 18, 103 S.Ct. at 1573 n. 18; Williams, 393 U.S. at 29, 89 S.Ct. at 9, 21 L.Ed.2d 24. Moreover, there is nothing uncommon or unusual in a state statute permitting and regulating recounts. The Supreme Court has acknowledged that recount procedures are a common and practical means of ensuring fair and accurate election results. See Roudebush v. Hartke, 405 U.S. 15, 25, 92 S.Ct. 804, 810-11, 31 L.Ed.2d 1 (1972). In Roudebush, the Supreme Court noted with approval that Indiana, along with many other states, had made vote recounts available to guard against irregularity or error in the tabulation of votes, and the Court stated that such recount provisions are “within the ambit of the broad powers delegated to the States by Art. I, § 4.” Id. The Plaintiffs attempt to bolster their treat-every-ballot-alike argument by suggesting that partisan influences have tainted the operation of Florida’s manual recount procedures in this case. The Plaintiffs allege that partisan influences have intruded in two ways: (1) that the Florida Democratic Party selectively requested manual recounts in a few popu lous counties that indicated significantly more Gore votes than Bush votes in order to gain political advantage; and (2) that the lack of statutory standards guiding the canvassing boards’ decisions to grant manual recounts permitted partisan influences to influence those decisions. The statute itself provides several safeguards against the kind of abuses" }, { "docid": "3089281", "title": "", "text": "104, 121 S.Ct. 525 (citing Harper, 383 U.S. at 665, 86 S.Ct. 1079). Thus, we have held that “[t]he right to vote includes the right to have one’s vote counted on equal terms with others.” League of Women Voters, 548 F.3d at 476 (citing Bush, 531 U.S. at 104, 121 S.Ct. 525; Dunn, 405 U.S. at 336, 92 S.Ct. 995; Reynolds v. Sims, 377 U.S. 533, 567-68, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Wesberry v. Sanders, 376 U.S. 1, 7, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); Gray v. Sanders, 372 U.S. 368, 380, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); United States v. Classic, 313 U.S. 299, 315, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); United States v. Mosley, 238 U.S. 383, 386, 35 S.Ct. 904, 59 L.Ed. 1355 (1915); U.S. Const. amends. XV, XIX, XXIV, XXVI). “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104-05, 121 S.Ct. 525; see also League of Women Voters, 548 F.3d at 477 (“At a minimum, ... equal protection requires ‘nonarbitrary treatment of voters.’ ” (quoting Bush, 531 U.S. at 105, 121 S.Ct. 525)). We are therefore guided in our analysis by the important requirement that state actions in election processes must not result in “arbitrary and disparate treatment” of votes. Constitutional concerns regarding the review of provisional ballots by local boards of elections are especially great. As in a recount, the review of provisional ballots occurs after the initial count of regular ballots is known. See John Fortier, Foley on the Future of Bush v. Gore, 68 Ohio St. L.J. 1051, 1061 (2007). This particular post-election feature makes “specific standards to ensure ... equal application,” Bush, 531 U.S. at 106, 121 S.Ct. 525, particularly “necessary to protect the fundamental right of each voter” to have his or her vote count on equal terms, id. at 109, 121 S.Ct. 525. The lack of specific standards for reviewing provisional ballots can otherwise result in “unequal evaluation of ballots.” Id." }, { "docid": "3089324", "title": "", "text": "24 (1968) (holding that \" 'invidious' distinctions cannot be enacted without a violation of the Equal Protection Clause,” and that Ohio's laws limiting the ability of political parties to appear on the ballot constitute \"an invidious discrimination, in violation of the Equal Protection Clause”). In particular, the Court has spoken regarding the requirements of the Equal Protection Clause with respect to claims that a state is counting ballots inconsistently. See Bush, 531 U.S. at 104-05, 121 S.Ct. 525 (\"Equal protection applies ... to the manner of [the] exercise [of the right to vote]. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.”) (citing Harper, 383 U.S. at 665, 86 S.Ct. 1079); id. at 105, 121 S.Ct. 525 (\"The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate.”). Of great importance, a showing of intentional discrimination has not been required in these cases. Consequently, we reject ORP’s argument that there can be no violation of the Equal Protection Clause here without evidence of intentional discrimination. . The record indicates that the initial total of ballots cast in the right polling location but wrong precinct was 286. Of those, some were disqualified for other reasons and others were found to have been cast in the correct location in the first place, leaving 269 still in dispute. R.38-8, Ex. 1 at 1-2. . Williams argues that the 27 votes cast at the downtown office \"is a distinguishable situation” because they were not \"cast in the wrong precinct” but rather at the downtown office. Williams 1st Br. at 4, 14-15. He argues that \"[n]o one who goes to the Board of Elections to vote early is voting in his or her own precinct.” Id. at 15. To the extent that Williams attempts to make a distinction based on the physical location, the argument is not well taken. Casting a ballot \"in the" }, { "docid": "13756768", "title": "", "text": "under a “county unit” system that effectively weighted rural votes more heavily than urban votes). The other case cited by appellants, Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000), involved a situation where ballots for a statewide post from different counties were recounted under disparate standards, raising the possibility that voters who cast identical ballots would have their votes treated differently when choosing electors for president. Id. at 106-09, 121 S.Ct. 525. Both of the cases Save Palisade cites thus involve situations where two or more classes of voters cast votes on the same issue or for the same office, and one class’s votes were effectively diluted. That is simply not the case here. While voters in home rule counties may have the ability to vote directly on county-wide measures affecting their own county — an ability not shared by their statutory county analogues — this in no way dilutes the votes of the electors of statutory counties. The reason is simple: Unlike the voters in Bush and in Reynolds, the voters in statutory and home rule counties never have their votes weighed differently on the same question. A statewide ballot is the only opportunity for true comparison. When that occurs, all voters, whether they reside in statutory or in home rule counties, are given an opportunity to vote. We can find no burden on a fundamental right to vote under such a scheme. Like the appellant in Skrzypczak v. Kauger, Save Palisade and its members are still free to express their view that Mesa County’s land use process needs to be changed, and they have thus suffered no burden on their right to free speech. 92 F.3d 1050, 1053 (10th Cir.1996) (“[T]he Oklahoma Supreme Court has not prevented Skrzypczak from speaking on any subject. She is free to argue against legalized abortion, to contend that pre-submission content review of initiative petitions is unconstitutional, or to speak publicly on any other issue.”). Nor have their rights to vote been diluted with respect to any other citizens of Colorado. Therefore, no fundamental right has been burdened." }, { "docid": "13050951", "title": "", "text": "that the ballot image summaries generated during recounts “do not permit the canvassing board to determine whether the voter made an intentional choice to undervote or that the machine failed to record the vote due to voter mistake, human error, or system error.” Plaintiffs thus argue that Florida voters are not accorded equal treatment because those residing in optical scan counties will have an opportunity to have their residual votes reviewed in a meaningful way in certain very close elections whereas those residing in touchscreen counties will not. Plaintiffs’ fundamental error is one of perspective. By adopting the perspective of the residual voter, they have avoided the question that is of constitutional dimension: Are voters in touchscreen counties less likely to east an effective vote than voters in optical scan counties? It is this question, and not the question of whether uniform procedures have been followed across a state regardless of differences in voting technology, that the Supreme Court consistently has emphasized in its voting jurisprudence. See, e.g., Bush, 531 U.S. at 104-05, 121 S.Ct. 525 (“Having once granted the right to vote on equal terms, the state may not, by later arbitrary treatment, value one person’s vote over that of another.”); Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (“[A] citizen has a constitutionally protected right to partici pate in elections on an equal basis with other citizens in the jurisdiction.”); Reynolds v. Sims, 377 U.S. 533, 563, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (“Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable.”); Wesberry v. Sanders, 376 U.S. 1, 7-8, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) (“[A]s nearly as is practieable[,] one man’s vote in a congressional election is to be worth as much as another’s.”). The right to vote is fundamental, forming the bedrock of our democracy. See Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (“[Vjoting is of the most fundamental significance under our constitutional" }, { "docid": "3611663", "title": "", "text": "this problem when they moved the district court to expand the consent decree to avoid constitutional infirmity. We agree with all of the parties and the district court that the consent decree likely violates the equal protection principle recognized in Bush v. Gore. “[A] citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104-05, 121 S.Ct. 525. It appears to us that the consent decree does just that. Our Hunter case noted a similar equal protection problem with this consent decree. There, the Hamilton County elections board “considered evidence of poll-worker error with respect to some ballots cast in the wrong precinct but not other similarly situated ballots when it evaluated which ballots to count.” Hunter, 635 F.3d at 238. Hunter recognized the possibility that Hamilton County’s treatment of provisional ballots under the consent decree could create a statewide equal protection problem, but limited its analysis to the county-based equal protection claim brought by the parties. See id. at 241-42. Here, the SEIU plaintiffs’ equal protection claim squarely raises the statewide disparity inherent in the terms of the consent decree: its preferential treatment of SSN-4 provisional ballots. (SEIU Pis.’ Second Am. Compl. ¶ 94.) Consistent with Hunter, we join the parties and the district court in finding that the consent decree’s different treatment of similarly situated provisional ballots likely violates equal protection. 2. Irreparable Injury, Substantial Harm to Others, Public Interest Turning to the equitable considerations, the State does not contest the district court’s core findings of irreparable harm to the voter and absence of harm to others. Rather, it offers only vague public-interest concerns, speculating that the injunction will spawn additional poll-worker error, vote dilution, and post-election litigation. As we explained in rejecting the CRACC amici’s vote-dilution argument, the record does not" }, { "docid": "13635", "title": "", "text": "not have-resulted if those challenged by the Republican Party did the same. Nor does it explain what harm would have resulted if all the challenged voters had been treated identically. Indeed, when the Board made its eleventh hour decision to allow the previously disqualified voters to vote, it instructed the polls to “make sure that [the challenged voters’] ballots be set aside” in case an appeal was made and their votes were again disqualified. The Board does not explain why this was an impractical solution for dealing with all the, challenged voters from the outset. Because the means chosen to protect the state’s compelling interest of ensuring all voters were bona fide Rota residents were neither necessary nor narrowly tailored, we hold that Appellees’ right to equal protection of the law was violated. Charfauros, Atalig, and Aldan were denied equal protection of the law in another — and perhaps, given the political environment in Rota — more significant way. Charfauros, Atalig, and Aldan were arbitrarily denied the right to cast a secret ballot, a right guaranteed to them by Section 6411(a) of the Northern Mariana Islands’ Commonwealth Code, which provides: Each qualified voter has the right to cast a secret ballot in private. The board shall set up voting places to guarantee that each voter may vote in private. I N. Mar. I.Code § 6411(a) (1997). It is well-established that once the legislature prescribes a particular voting procedure, the right to vote in that precise manner is a fundamental right, and “one source of its fundamental nature lies in the ... equal dignity owed to each voter.” Bush, 121 S.Ct. at 529. Here, the legislature guaranteed to every voter the right to cast a secret ballot. Because Charfauros, Atalig, and Aldan were wrongly excluded from casting a secret vote on the day of the election, they were later required to proclaim in open court how they would have voted. That the election result changed after their votes were taken into account further publicized for whom they had voted. On a scarcely populated island where the elected Government employs a vast" }, { "docid": "22114791", "title": "", "text": "equal treatment. An early case in our one-person, one-vote jurisprudence arose when a State accorded arbitrary and disparate treatment to voters in its different counties. Gray v. Sanders, 372 U. S. 368 (1963). The Court found a constitutional violation. We relied on these principles in the context of the Presidential selection process in Moore v. Ogilvie, 394 U. S. 814 (1969), where we invalidated a county-based procedure that diluted the influence of citizens in larger counties in the nominating process. There we observed that “[t]he idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government.” Id., at 819. The State Supreme Court ratified this uneven treatment. It mandated that the recount totals from two counties, Miami-Dade and Palm Beach, be included in the certified total. The court also appeared to. hold sub silentio that the recount totals from Broward County, which were not completed until after the original November 14 certification by the Secretary, were to be considered part of the new certified vote totals even though the county certification was not contested by Vice President Gore. Yet each of the counties used varying standards to determine what was a legal vote. Broward County used a more forgiving standard than Palm Beach County, and uncovered almost three times as many new votes, a result markedly disproportionate to the difference in population between the counties. In addition, the recounts in these three counties were not limited to so-called undervotes but extended to all of the ballots. The distinction has real consequences. A manual recount of all ballots identifies not only those ballots which show no vote but also those which contain more than one, the so-called overvotes. Neither category will be counted by the machine. This is not a trivial concern. At oral argument, respondents estimated there are as many as 110,000 overvotes statewide. As a result, the citizen whose ballot was not read by a machine because he failed to vote for a candidate in a way readable by a machine may still have his" }, { "docid": "22114784", "title": "", "text": "recounts violates the Equal Protection and Due Process Clauses. With respect to the equal protection question, we find a violation of the Equal Protection Clause. II A The closeness of this election, and the multitude of legal challenges which have followed in its wake, have brought into sharp focus a common, if heretofore unnoticed, phenomenon. Nationwide statistics reveal that an estimated 2% of ballots cast do not register a vote for President for whatever reason, including deliberately choosing no candidate at all or some voter error, such as voting for two candidates or insufficiently marking a ballot. See Ho, More Than 2M Ballots Uncounted, AP Online (Nov. 28,2000); Kelley, Balloting Problems Not Rare But Only in a Very Close Election Do Mistakes and Mismarking Make a Difference, Omaha World-Herald (Nov. 15,2000). In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements. This case has shown that punchcard balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter. After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting. B The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. U. S. Const., Art. II, § 1. This is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 85 (1892), that the state legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. Id., at 28-33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people," }, { "docid": "13050950", "title": "", "text": "novo and its findings of fact for clear error. A.I.G. Uru. Compania de Seguros, S.A. v. AAA Cooper Transp., 334 F.3d 997, 1003 (11th Cir.2003). III. Discussion The basic theory of Plaintiffs’ case is that by certifying touchscreen voting systems that are incapable of providing for the type of manual recounts contemplated by Florida law, the defendants have violated the equal protection and due process rights of voters in touchscreen counties. Although we agree with the district court that Florida’s manual recount procedures for touchscreen counties comply with Florida law, the constitutional questions do not turn on that inquiry. Instead, we consider whether Florida’s manual recount procedures, which vary by county according to voting system, accord arbitrary and disparate treatment to Florida voters, thereby depriving voters of their constitutional rights to due process and equal protection. See Bush v. Gore, 531 U.S. 98, 104-05, 121 5.Ct. 525, 148 L.Ed.2d 388 (2000) (per curiam). Equal Protection Plaintiffs argue that the manual recount procedure for touchscreen counties fails to provide for meaningful review of under-votes. They contend that the ballot image summaries generated during recounts “do not permit the canvassing board to determine whether the voter made an intentional choice to undervote or that the machine failed to record the vote due to voter mistake, human error, or system error.” Plaintiffs thus argue that Florida voters are not accorded equal treatment because those residing in optical scan counties will have an opportunity to have their residual votes reviewed in a meaningful way in certain very close elections whereas those residing in touchscreen counties will not. Plaintiffs’ fundamental error is one of perspective. By adopting the perspective of the residual voter, they have avoided the question that is of constitutional dimension: Are voters in touchscreen counties less likely to east an effective vote than voters in optical scan counties? It is this question, and not the question of whether uniform procedures have been followed across a state regardless of differences in voting technology, that the Supreme Court consistently has emphasized in its voting jurisprudence. See, e.g., Bush, 531 U.S. at 104-05, 121 S.Ct." }, { "docid": "13636", "title": "", "text": "guaranteed to them by Section 6411(a) of the Northern Mariana Islands’ Commonwealth Code, which provides: Each qualified voter has the right to cast a secret ballot in private. The board shall set up voting places to guarantee that each voter may vote in private. I N. Mar. I.Code § 6411(a) (1997). It is well-established that once the legislature prescribes a particular voting procedure, the right to vote in that precise manner is a fundamental right, and “one source of its fundamental nature lies in the ... equal dignity owed to each voter.” Bush, 121 S.Ct. at 529. Here, the legislature guaranteed to every voter the right to cast a secret ballot. Because Charfauros, Atalig, and Aldan were wrongly excluded from casting a secret vote on the day of the election, they were later required to proclaim in open court how they would have voted. That the election result changed after their votes were taken into account further publicized for whom they had voted. On a scarcely populated island where the elected Government employs a vast majority of the population, such disclosure can affect one’s job, one’s livelihood, or one’s future possibilities for employment. Putting such a price tag on the right to vote — particularly when only an arbitrarily selected few are forced to pay — violates the equal protection clause and is therefore unconstitutional. Given the long line of cases protecting the fundamental right to vote in the context of Equal Protection challenges and given the clear language of the CNMI code, we hold that the fundamental right to vote, the right to a secret ballot, and the right to equal protection of the laws were clearly established at the time the violation occurred. Our holding is further strengthened by the fact that, in this particular case, the Board was on notice that its election challenge procedures were flawed and that it was in danger of violating the fundamental rights of Rota residents. See King, No. 91-1191 at 10. Because Appellees have established that a constitutional violation occurred and that the constitutional rights involved were clearly established at the" }, { "docid": "13050949", "title": "", "text": "action against Secretary of State Hood, LePore (Arthur Anderson’s predecessor as the Supervisor of Elections for Palm Beach County) and Kay Clem, the Supervisor of Elections for Indian River County. Initially, the district court dismissed their complaint under the Younger abstention doctrine. This court vacated that order, however, and remanded for consideration of whether the use of touchscreen voting systems that do not produce a paper record of votes and allegedly lack a manual recount procedure violates the due process and equal protection clauses of the Fifth and Fourteenth Amendments to the United States Constitution. See Wexler v. Lepore, 385 F.3d 1336 (11th Cir.2004) (per curiam). Following a bench trial, the district court ruled for defendants, holding that Emergency Rule 1SER04-1 established a manual recount procedure for touchscreen voting systems that both complies with Florida law and establishes a uniform, nondifferential standard for conducting manual recounts, satisfying the requirements of equal protection and due process. Plaintiffs now appeal. II. Standard of Review Following a bench trial, we review a district court’s conclusions of law de novo and its findings of fact for clear error. A.I.G. Uru. Compania de Seguros, S.A. v. AAA Cooper Transp., 334 F.3d 997, 1003 (11th Cir.2003). III. Discussion The basic theory of Plaintiffs’ case is that by certifying touchscreen voting systems that are incapable of providing for the type of manual recounts contemplated by Florida law, the defendants have violated the equal protection and due process rights of voters in touchscreen counties. Although we agree with the district court that Florida’s manual recount procedures for touchscreen counties comply with Florida law, the constitutional questions do not turn on that inquiry. Instead, we consider whether Florida’s manual recount procedures, which vary by county according to voting system, accord arbitrary and disparate treatment to Florida voters, thereby depriving voters of their constitutional rights to due process and equal protection. See Bush v. Gore, 531 U.S. 98, 104-05, 121 5.Ct. 525, 148 L.Ed.2d 388 (2000) (per curiam). Equal Protection Plaintiffs argue that the manual recount procedure for touchscreen counties fails to provide for meaningful review of under-votes. They contend" }, { "docid": "22341190", "title": "", "text": "absentee ballot statute that operated to deny otherwise eligible prisoners the right to vote, based solely on the prisoner’s county of incarceration). The reasoning of O’Brien does not apply here, however, as the Plaintiffs do not assert that they have been denied the right to vote or to have their vote counted; rather, they assert that them votes have received unequal treatment in the post-election counting process. In the one-person, one-vote cases, the Supreme Court has held that states’ weighted voting systems, which arbitrarily and systematically granted a lesser voice to some voters based on their geographic location, violated the voters’ right to equal protection. See Moore v. Ogilvie, 394 U.S. 814, 819, 89 S.Ct. 1493, 1496, 23 L.Ed.2d 1 (1969); Reynolds v. Sims, 377 U.S. 533, 563, 84 S.Ct. 1362, 1382, 12 L.Ed.2d 506 (1964); Roman v. Sincock, 377 U.S. 695, 709-10, 84 S.Ct. 1449, 1458, 12 L.Ed.2d 620 (1964); Gray v. Sanders, 372 U.S. 368, 379-80, 83 S.Ct. 801, 808, 9 L.Ed.2d 821 (1963). The facts presented by those cases are different from the facts here, however. The ballots of voters in Florida counties conducting manual recounts are not receiving greater weight than are votes elsewhere in Florida. The additional scrutiny of ballots afforded under Florida’s manual recount procedures does not weigh the value of votes; it merely verifies the count. Unlike the foregoing cases which have held that the systematic unequal weighting of votes is unconstitutional, here there is no automatic, inevitable, or systematic granting of greater weight to the choices of any voter or class of voters. This conclusion is further supported by the fact that the Constitution itself, in Article II, § 1, cl. 2, contemplates that each state will direct its own (potentially different) method of appointing Presidential electors. Within each state, federal courts have acknowledged that diverse methods of voting may be employed. See Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177, 181 (4th Cir.1983) (citing Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 777, 13 L.Ed.2d 675 (1965)). The Supreme Court has confirmed that recounts are well" }, { "docid": "3611662", "title": "", "text": "decree provides a remedy only for SSN-4 voters. For those SSN-4 voters who later show that poll-worker error caused their wrong precinct or deficient-affirmation vote, the consent decree saves their ballots from rejection. A provisional voter using any other form of identification (e.g., current photo identification, copy of current utility bill, paycheck) receives no such reprieve. Both the State and the SEIU plaintiffs addressed this issue before the district court. In arguing for an expansion of the consent decree, the SEIU plaintiffs objected to its “arbitrary and unequal counting and rejecting of the ballots of lawfully registered Ohio voters.” (SEIU Pis.’ Second Am. Compl. ¶ 94; Mot. Prelim. Inj. at 31.) The Secretary similarly acknowledged this equal protection problem in the consent decree, but argued that “it’s equally plausible to say that the proper remedy is to treat everybody the same and do away with the NEOCH decree.” (R. 69, Tr. Oral Arg. at 58:11-17.) Though both parties continue to recognize this equal protection problem, they disagree on a fix. The NEOCH plaintiffs likewise recognized this problem when they moved the district court to expand the consent decree to avoid constitutional infirmity. We agree with all of the parties and the district court that the consent decree likely violates the equal protection principle recognized in Bush v. Gore. “[A] citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104-05, 121 S.Ct. 525. It appears to us that the consent decree does just that. Our Hunter case noted a similar equal protection problem with this consent decree. There, the Hamilton County elections board “considered evidence of poll-worker error with respect to some ballots cast in the wrong precinct but not other similarly situated ballots when it evaluated which ballots to count.” Hunter, 635 F.3d" } ]

[ { "docid": "19107073", "title": "", "text": "Opinion of the Court Per Curiam: Upon approval of his conviction of desertion as well as of the sentence to dishonorable discharge, total forfeitures and confinement at hard labor for three years, by a board of review, the accused petitioned this Court to determine the sufficiency of the evidence to support the finding of apprehension. The sole evidence of this element of the offense is in the form of a stipulation of the expected testimony of Agent G. Gillen, Federal Bureau of Investigation, entered into by the parties, which we set out in full: “My name is G. Gillen and I am an agent of the Federal Bureau of Investigation and was such agent at the time herein mentioned. On 3 May 1954 at 2215 hours, I apprehended the accused herein, Private James F. Crawford, RA 18 365 871, on the street at 6449 Smith Yale in Chicago, Illinois. The accused neither surrendered, requested that he be apprehended, nor voluntarily initiated his being apprehended.” This stipulation is substantially the same as those with which we were concerned in United States v. Beninate, 4 USCMA 98, 15 CMR 98; United States v. Cowans, 4 USCMA 308, 15 CMR 308, and United States v. Salter, 4 USCMA 338, 15 CMR 338. In each of the cited cases we held the stipulation insufficient proof of termination of desertion by apprehension. No material difference is found in the fact that in the instant case the accused was apprehended by an agent of the Federal Bureau of Investigation, whereas in the cited cases state or local authorities were involved. Article 8, Uniform Code of Military Justice, 50 USC § 562. Agents of that Bureau are authorized to apprehend individuals for violations of Federal laws other than encompassed by the Uniform Code of Military Justice. Such an apprehension does not operate to terminate an unauthorized absence from one of the armed forces. Termination results only from a return to military control. In the case at bar, whether the accused’s return to military control was voluntary or involuntary was not shown. Nor can involuntariness be inferred from" } ]

[ { "docid": "1254824", "title": "", "text": "unwarranted invasion of its exclusive province and, hence, prejudicial. The decision of the board of review is reversed, and the record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered. Judge Kilday concurs. This case has been before us previously, and we at that time set aside other charges and ordered them dismissed. See United States v Schoenberg, 16 USCMA 425, 37 CMR 45. The error now before us was not then assigned or considered. The matter arose on accused’s petition from the decision of the board of review on further review, following our decision in United States v Robbins, 16 USCMA 474, 37 CMR 94. Quinn, Chief Judge (dissenting): As the author of the opinion in United States v Robbins, 16 USCMA 474, 37 CMR 94, I can only say I did riot intend it to hold, and I do not believe it holds, that the erroneous instruction on the effect of partially false testimony is reversible error, regardless of the absence of any circumstance indicating prejudice to the accused. Id., at page 476, footnote 2. On the first appeal, the only question before us was sufficiency of the evidence of guilt aliunde the accused’s confession. As to some offenses we determined the question in the accused’s favor, but as to others we decided the matter against him. Although the punishment for the former was nominal, out of an abundance of caution we returned the case to the board of review for reconsideration of the sentence. Now we are told that an error in instruction on the merits requires reversal of all the findings of guilty. I did not perceive error of that kind on the original review, and I still do not see any on this appeal. The record of trial did not require the court members to weigh the credibility of any witness. The accused’s guilt was established out of his own mouth by a complete confession that he assaulted the child with the intent to “rape her” and that he stole the property alleged in the larceny charge." }, { "docid": "5776219", "title": "", "text": "Wiener, The Supreme Court’s New Rules, 68 Harv LR 20, 84. Similarly, a second motion for reconsideration by a board will have no effect in expanding the period within which an accused may petition this Court for review, nor will it extend the jurisdiction of the board — unless the motion is granted prior to the filing of a petition or a certificate in this Court. Perhaps the most telling response to the arguments of appellate Government counsel respecting unconscionable delays is that, if there is any sort of substance to the contention, the several Judge Advocates General are wholly free, under Article 66/, to promulgate uniform Rules which will serve to narrow the right to seek reconsideration, and so will limit the effect of the present holding. III As we suggested in United States v. Jackson, supra, “a board and this Court cannot exercise ju- risdiction over the same cause at the same time.” While, as was said in Reeves, “a board of review has the authority, when the application is not made, by The Judge Advocate General, to reconsider its decision prior to the time a petition for review has been served and filed by an accused, or a certificate by a Judge Advocate General has been filed, or a rec-cord of trial in a case involving an automatic appeal has reached this Court,”. there remains no authority to reconsider once one of these events has occurred. Also, of course, a board of review lacks jurisdiction if a petition for reconsideration is filed after the expiration of 30 days from the date the accused is notified of its decision — since at that point appellate review has already been completed, and a terminus to litigation is required. Thereafter action must be taken through other routes. See Article 73. Compare United States v. Ferguson, 5 USCMA 68, 17 CMR 68 (opinion of Judge Brosman); Hazel-Atlas Glass Company v. Hartford Empire Company, 322 US 238, 88 L ed 1250, 64 S Ct 997. IV With respect to the effect of a peti tion for reconsideration on the running of the" }, { "docid": "16041927", "title": "", "text": "1951; United States v Brown, 13 CMR 161. In the Brown case, supra, an Army board of review, after disapproving the disrespect charge, affirmed a finding of using provocative language as fairly alleged and proved. Even were we disposed to attempt such curative action, the failure of the record to indicate clearly the noncommissioned officer referred to would prevent this. A report of a board of medical survey prepared after an examination of the accused was received in evidence. Numerous references to other criminal activities of the accused were fully described therein. Juvenile convictions as well as others were set out therein, and no attempt was made to mask these entries prior to its submission to the trial court. There is no room to doubt the prejudicial effect of such material. United States v Yerger, 1 USCMA 288, 3 CMR 22; United States v Perna, 1 USCMA 438, 4 CMR 30; United States v Randall, 5 USCMA 535, 18 CMR 159; United States v Kelley, 7 USCMA 584, 23 CMR 48. The final entry in this catalogue of confusion relates to the handling of the accused’s petition for review. On December 6, 1956, the board of review affirmed the conviction. The board’s opinion was not served upon the accused until January 18, 1957. Three days later he put his petition for review in military channels at the U. S. Naval Retraining Command, Portsmouth, New Hampshire. For no reason apparent on the face of the record, this petition was not forwarded to The Judge Advocate General of the Navy until more than one full year had elapsed — February 25, 1958. Thereafter, this petition, implemented by appellate defense counsel’s assignments of error and supporting brief, was filed with this Court. There may be good reason for the delay in the appellate processes, but it does not appear in the record before us. Unexplained delays of the kind presented here should not be tolerated by the services, and they will not be countenanced by this Court. The decision of the board of review is reversed. In view of all the circumstances, the" }, { "docid": "5776223", "title": "", "text": "our interpretation of Article 67 (c) governing petitions for review, we are sure that this directive contains an incorrect exposition of the law. Moreover, we do not consider that the issuance of a similar Rule would fall within the authority of the several Judge Advocates General under Article 66(f) — for it is our opinion that, if a petition for reconsideration is submitted within the proper time limit, the statutory appeal period granted by Article 67(c) is tolled until that petition is disposed of. V The questions of The Judge Advocate General having been answered, the record of trial is remanded to the board of review for action not inconsistent with this opinion. Chief Judge Quinn and Judge Lati-MER concur. Hereafter are presented the several time limits set out by Circuit, with the appropriate Rule of Practice for each Circuit: (1) Allowing fifteen days to petition for rehearing: Court of Appeals for District of Columbia, Rule 26 (but only five days in a criminal ease appealed from the District Court); First Circuit, Rule 32; Second Circuit, Rule 28; Third Circuit, Rule 33; Seventh Circuit, Rule 22; Eighth Circuit, Rule 15. (2) Twenty days: Sixth Circuit, Rule 28; Tenth Circuit, Rule 24. (3) Twenty-one days: Fifth Circuit, Rule 29. (4) Thirty days: Ninth Circuit, Rule 25. This view is presented in detail in the opinion of the board of review in the instant case, and as well in the opinion rendered by the same board in United States v. Smith [CM 373211], 16 CMR 348, which has also been certified to us. See 5 USCMA 460, 17 CMR 84. It may be noted in passing that appellate courts differ widely with respect to the interval permitted to elapse prior to the issuance of the mandate following the rendition of the court’s opinion. Some Federal circuit courts specifically authorize a stay in issuance' of the mandate to permit the perfection of an appeal to the Supreme Court. In a criminal case, a petition for a writ of certiorari to review the judgment of a Federal Court of Appeals must be filed with" }, { "docid": "5776208", "title": "", "text": "Boards of Review. These Rules, however, contain no provision having to do with reconsideration by boards of decisions rendered by them. In this respect they are unlike those of most appellate tribunals. For example, in this Court a petition for rehearing, modification, or reconsideration is dealt with in Rules 46-48 of its Rules of Practice and Procedure, and a time limit has been set as follows: “5 days from receipt of notice of entry of an order, decision, or opinion by the Court.” The Supreme Court of the United States permits a petition for rehearing as to judgments or decisions, other than those denying or granting certiorari, to be filed within 25 days, unless the time is shortened or enlarged by the Court or a Justice thereof. The rules governing such petitions differ among the various Federal circuits— but all recognize that they may be filed. A majority of the circuits provide a period of only 15 days, but certain of them allow as much as 30 days for requesting reconsideration of a decision. In view of the absence of express provision for rehearings in the Rules governing proceedings before boards of review, it was contended in early cases that they lack authority to entertain any sort of motion for reconsideration. However, this Court was mindful of the inherent power of an appellate court to reconsider its own decisions — unless prohibited by statute from doing so. See, e.g., 3 Am Jur, Appeal and Error, § 796. Accordingly, in United States v. Reeves, 1 USCMA 388, 3 CMR 122, we held that, “unless an appeal to this Court has been taken a board of review has the discretion to reconsider its decision.” To the same effect is our statement in United States v. Corbin, 3 USCMA 99, 11 CMR 99, “that a board does possess power to reconsider its decision so long as the accused has not pretermitted the exercise thereof by petitioning this Court.” The language just quoted not only dispels doubt that a board may reconsider one of its own decisions, but also provides an answer to the" }, { "docid": "14413219", "title": "", "text": "in his behalf. The “Petition,” dated May 15, after routing through appropriate headquarters, reached the office of The Judge Advocate General, United States Navy, on June 3, 1952, and was received by the board of review on June 11. It is appropriate to note that at no time was it forwarded to this Court as a petition. However, it is attached to the record now before us. On June 13, the board of review denied the motion for reconsideration, which it had not dealt with theretofore. The basis for its action was its conclusion that accused’s petition for review by this Court had operated to divest it of jurisdiction in the cause and had effectively vested jurisdiction here. Thereupon, The Judge Advocate General, United States Navy, certified to us the question of the correctness of the decision of the'board of review. II Quite clearly, a board of review has power to entertain a motion for reconsideration of a decision rendered by it, but just as obviously a board and this Court cannot exercise jurisdiction over the same cause at the same time. United States v. Reeves (No. 453), 3 CMR 122, decided May 15, 1952. The critical question here, therefore, is whether the “Petition” accused placed in channels on May 15 operated to invest this Court with jurisdiction over his case. Accepting for the moment the notion that the paper filed was in fact and law a petition for review, there is no doubt that its having been placed in proper military channels amounted to a “filing” of the case in this Court. Rule 22(b) of our Rules of Practice and Procedure expressly provides that: “A petition for Grant of Review shall be deemed to have been filed . . . upon the date when the petition is deposited in military channels for transmittal.” Equally without doubt, the filing of a petition for review operates to vest in this Court jurisdiction of a ease. Uniform Code of Military Justice, Article 67(c), 50 USC § 654. Perhaps we should observe in passing that Rule 22 (b), supra, is entirely consistent with" }, { "docid": "5776209", "title": "", "text": "view of the absence of express provision for rehearings in the Rules governing proceedings before boards of review, it was contended in early cases that they lack authority to entertain any sort of motion for reconsideration. However, this Court was mindful of the inherent power of an appellate court to reconsider its own decisions — unless prohibited by statute from doing so. See, e.g., 3 Am Jur, Appeal and Error, § 796. Accordingly, in United States v. Reeves, 1 USCMA 388, 3 CMR 122, we held that, “unless an appeal to this Court has been taken a board of review has the discretion to reconsider its decision.” To the same effect is our statement in United States v. Corbin, 3 USCMA 99, 11 CMR 99, “that a board does possess power to reconsider its decision so long as the accused has not pretermitted the exercise thereof by petitioning this Court.” The language just quoted not only dispels doubt that a board may reconsider one of its own decisions, but also provides an answer to the first question certified by The Judge Advocate General — one diametrically opposed to the conclusion of the board of review here to the effect that it lacked jurisdiction to entertain the offered motion for reconsideration. It will be observed that, in the case at bar, no petition for review by this Court preceded the denied motion for reconsideration, and thus pretermitted the exercise of board jurisdiction. The motion was, therefore, timely. Boards of review — other than that whose members considered the present case — have for the most part appeared correctly to interpret our Reeves decision to signify that, in the absence of change in the Uniform Rules governing proceedings before boards of review, a motion for reconsideration may be submitted at any time before a petition, or a certificate for review, has been filed here, or until the 30-day statutory period provided for the filing of such papers has expired. See, e.g., United States v. Estep (CM 371588), decided July 8, 1954; United States v. Shoffner [ACM 5113], 5 CMR 465; United States" }, { "docid": "14708684", "title": "", "text": "raised for they deal exclusively with the sentence imposed by the court-martial. The decision of the board of review is reversed and the record of trial is returned to The Judge Advocate Gen eral of the Army. A rehearing may be ordered. Chief Judge Quinn concurs. Latimee, Judge (dissenting): I dissent. We granted review in this case upon four issues, the last three of which have since been determined adversely to the accused by our opinions in United States v Cleckley, 8 USCMA 83, 23 CMR 307; United States v Giles, 8 USCMA 92, 23 CMR 316; and allied cases. My colleagues, however, on the strength of their views in United States v Lovett, 7 USCMA 704, 23 CMR 168, and United States v Thornton, 8 USCMA 67, 23 CMR 281, elect to reverse this conviction because of ineffective assistance of counsel, and with this disposition I am unable to agree. On this record, I am not willing to brand trial defense counsel with the stigma of improper representation, as there is no factual base to support that charge. My views on that question are spelled out at length in my separate opinions in Lovett, supra, and Thornton, supra, and they need not be stated anew. The only additional point I care to mention is that in this case we have been furnished with a starting point to remove speculation and conjecture. A petition for new trial has been filed, and affidavits and counter-affidavits have been obtained from the accused and trial defense counsel. If considered by the Court as an inadequate base for an informed opinion, they are sufficient to initiate an appropriate way of reaching the truth. Accordingly, I would proceed on accused’s petition for new trial, which he has urged as alternative relief, in order that we be able to make an enlightened determination of the contested issue." }, { "docid": "20917391", "title": "", "text": "purely suppositious situation is ordinarily not subject to review. United States v Harris, 10 USCMA 69, 27 CMR 143. However, we need not ascertain the exact meaning of the language of the board of review. Suffice it to say in answer to the certified question that under the Uniform Code of Military Justice when an appellate tribunal sets aside some findings of guilty and affirms others, it has the power, and the discretion, to determine whether to direct a rehearing on the sentence by a court-martial or to reassess the sentence itself. Cf. United States v Marymont, 11 USCMA 745, 29 CMR 561; United States v Swanson, supra. The decision of the board of review is reversed. The record of trial is returned to The Judge Advocate General of the Army for submission to a board of review for further proceedings consistent with this opinion. In their thorough brief, appellate defense counsel have compiled a large number of cases dealing with this matter. See United States v Swanson, 9 USCMA 711, 26 CMR 491; United States v Guy, 8 USCMA 66, 23 CMR 290; United States v Oakley, 7 USCMA 733, 23 CMR 197. “If it were not for our disposition of this appeal on the basis of the third assigned error,” the board of review said, “we would feel constrained to order a rehearing on the sentence.” LatimeR, Judge (concurring in the result) : While generally I am not in disagreement with my associates regarding the first issue certified to this Court by The Judge Advocate General of the Army, I prefer to make my position clear on the authority of a law officer to question witnesses. Here in a full-scale trial on two serious offenses, only one question of little consequence was asked of a Government witness. In spite of this limited participation, the board of review’s decision and the Chief Judge’s opinion are susceptible of the interpretation that if an answer to a question is not favorable to an accused, the law officer commits prejudicial error because he joins the prosecution. I know of no law or" }, { "docid": "5776210", "title": "", "text": "first question certified by The Judge Advocate General — one diametrically opposed to the conclusion of the board of review here to the effect that it lacked jurisdiction to entertain the offered motion for reconsideration. It will be observed that, in the case at bar, no petition for review by this Court preceded the denied motion for reconsideration, and thus pretermitted the exercise of board jurisdiction. The motion was, therefore, timely. Boards of review — other than that whose members considered the present case — have for the most part appeared correctly to interpret our Reeves decision to signify that, in the absence of change in the Uniform Rules governing proceedings before boards of review, a motion for reconsideration may be submitted at any time before a petition, or a certificate for review, has been filed here, or until the 30-day statutory period provided for the filing of such papers has expired. See, e.g., United States v. Estep (CM 371588), decided July 8, 1954; United States v. Shoffner [ACM 5113], 5 CMR 465; United States v. Brown [ACM 4616], 4 CMR 650; United States v. Tribble [ACMS-3217], 7 CMR 739; United States v. Neuner [CM 361098], 9 CMR 479; United States v. Lyles [CM 351164], 6 CMR 440. Further, we have discovered that The Judge Advocate General, United States Air Force, on August 28, 1952, promulgated a change in the “Standing Operating Procedure” for Air Force boards of review, which amendment similarly recognizes the right of a board to entertain a motion for reconsideration at any time within thirty days from the date the accused is notified of the board’s decision. However, the present board — and subsequently appellate Government counsel before us — rely for a contrary conclusion on an ingenious analogy from the civilian judicial scene. Generally speaking, a civilian appellate court is powerless to grant a rehearing once its mandate has issued — in the absence, of course, of fraud or other extraordinary circumstance. See 84 ALR 579. Cf. Bernards v. Johnson, 314 US 19, 86 L ed 11, 62 S Ct 30. To the issuance of" }, { "docid": "5776211", "title": "", "text": "v. Brown [ACM 4616], 4 CMR 650; United States v. Tribble [ACMS-3217], 7 CMR 739; United States v. Neuner [CM 361098], 9 CMR 479; United States v. Lyles [CM 351164], 6 CMR 440. Further, we have discovered that The Judge Advocate General, United States Air Force, on August 28, 1952, promulgated a change in the “Standing Operating Procedure” for Air Force boards of review, which amendment similarly recognizes the right of a board to entertain a motion for reconsideration at any time within thirty days from the date the accused is notified of the board’s decision. However, the present board — and subsequently appellate Government counsel before us — rely for a contrary conclusion on an ingenious analogy from the civilian judicial scene. Generally speaking, a civilian appellate court is powerless to grant a rehearing once its mandate has issued — in the absence, of course, of fraud or other extraordinary circumstance. See 84 ALR 579. Cf. Bernards v. Johnson, 314 US 19, 86 L ed 11, 62 S Ct 30. To the issuance of a mandate, counsel equate The Judge Advocate General’s transmittal of the board of review’s decision to the officer at the time exercising general court-martial jurisdiction over the accused. After such transmittal — as required by paragraph 100c of the current Manual for Courts-Martial — it is contemplated that the decision of the board will be served on the accused under the authority of the officer mentioned last above. Government counsel have urged alternatively that, at the very latest, the service of the decision on the accused cuts off his right to petition for reconsideration — j ust as the issuance of its mandate by a civilian appellate tribunal would normally preclude motions for reconsideration. It is impossible to reconcile this approach either with the views expressed in Reeves and Corbin, supra, or with the remark found in United States v. Weeden, 3 USCMA 405, 12 CMR 161, that “After receiving notice of a decision of a board of review, an accused has two avenues he may travel. He can seek a reconsideration before the board" }, { "docid": "5776207", "title": "", "text": "however, that it was without jurisdiction to entertain the petition, and returned it and the record of trial to The Judge Advocate General. Thereupon his office certified the following three questions to us: “(1) Was the board of review correct in holding that it was without jurisdiction to entertain accused’s petition for reconsideration? “(2) When does a board of review lose jurisdiction to entertain a petition for reconsideration? “(3) What effect, if any, does the filing during the statutory 30-day appeal period (Art. 67c) of a petition for reconsideration with a board of review have on the running of such statutory period?” Also, the accused has submitted to us a petition for grant of review which assigns the same error relied on in the petition for reconsideration. Government appellate counsel have conceded the presence of this error. II Under the authority of Article 66 (/), Uniform Code of Military Justice, 50 USC § 653, The Judge Advocates General of the several Armed Forces have prescribed certain Uniform Rules of Procedure for Proceedings in and before Boards of Review. These Rules, however, contain no provision having to do with reconsideration by boards of decisions rendered by them. In this respect they are unlike those of most appellate tribunals. For example, in this Court a petition for rehearing, modification, or reconsideration is dealt with in Rules 46-48 of its Rules of Practice and Procedure, and a time limit has been set as follows: “5 days from receipt of notice of entry of an order, decision, or opinion by the Court.” The Supreme Court of the United States permits a petition for rehearing as to judgments or decisions, other than those denying or granting certiorari, to be filed within 25 days, unless the time is shortened or enlarged by the Court or a Justice thereof. The rules governing such petitions differ among the various Federal circuits— but all recognize that they may be filed. A majority of the circuits provide a period of only 15 days, but certain of them allow as much as 30 days for requesting reconsideration of a decision. In" }, { "docid": "5373993", "title": "", "text": "law officer.” See also United States v Moore, 4 USCMA 675, 16 CMR 249. We conclude in the ease at bar, therefore, that the defense, by declining to challenge, waived any ineligibility on the part of the law officer by reason of his knowledge and pretrial activity. We do not at all have a mere uninformed failure to act or unknowing acquiescence, but rather the very essence of waiver, for the matter was specifically invited to the attention of accused and his counsel, and armed with full knowledge they nonetheless deliberately and consciously declined to challenge the law officer and expressly and unreservedly waived that right. Under those circumstances, the language used by the late Judge Bros-man in United States v Beer, supra, is applicable to the instant case: “. . . if I ever saw an express and informed waiver, I find it here.” Accordingly, the board of review erred in holding that there was no properly constituted court-martial, and the first certified question must be answered in the negative. That being so, there is no occasion to answer the second question certified. It is rendered moot, for the decision of the board of review must be reversed. It is so ordered, and the record is returned to The Judge Advocate General of the Army for reference to a board of review for further proceedings not inconsistent with this opinion. Chief Judge Quinn concurs. Ferguson, Judge (dissenting): I dissent. In reversing the decision of the board of review in this case, the author of the principal opinion ignores the basic proposition that jurisdiction cannot be conferred upon a court-martial by the consent of the accused. McClaughry v Deming, 186 US 49, 22 S Ct 786, 46 L ed 1049 (1902). That jurisdictional error is present is evident from the uncontroverted declaration by the law officer in the record: “LO: Just one moment. As law officer I feel that I am subject to challenge under one of the first eight grounds. I am familiar with this case. I helped prepare the charges and specifications with the courts and boards of" }, { "docid": "22766631", "title": "", "text": "prior to the filing of the certificate with this Court, appellate Government counsel filed with the board of review a motion requesting reconsideration of the decision. This motion was denied on November 24, 1952, and thus the thirty-day period permitted by the Court rules did not expire until December 24, 1952. In United States v. Reeves (No. 453), 1 USCMA 388, 3 CMR 122, decided May 15, 1952, we upheld the authority of boards of review to entertain motions for reconsideration where such motions are made prior to the time an appeal has been lodged with this Court or before The Judge Advocate General has returned the case to the convening authority for further action in accordance with the board’s decision. Here the motion was made before any action was taken in the case which would divest the board of review of jurisdiction to reconsider its holding. In so holding we desire to make' it crystal clear that we find nothing in the record to lead us to believe that the motion was not made in good faith or that it was made solely for the purpose of delaying final disposition of the case. The motion was timely and reasonable, the board of review was under a duty to consider it on the merits, and The Judge Advocate General could take no action until the motion had been disposed of by the board of review. Accordingly, the thirty-day period did not commence to run until final action by the board of review, and the contention that the certificate should be dismissed on the first ground is without merit. II In its decision the board of review, after passing upon the validity of the specification, stated as follows: “The evidence in the instant case does not disclose that the accused was given an order before the words set forth in the specification were uttered by him. The evidence adduced would probably support the charge of insubordinate conduct towards a non-commissioned officer in violation of Article 91, UCMJ, but not a violation of the order alleged to have been violated in the" }, { "docid": "1254823", "title": "", "text": "evidence of guilt is compelling and that the error’s effect may thereby be overcome, such a rationale fails to give heed to the exclusive right of the fact finders to weigh credibility and to reject testimony for any reason, as well as the necessity that they find guilt is established by the evidence beyond a reasonable doubt. The instruction, howeyer, forbids the court members so to reject testimony which they find to be corroborated, even though they believe it to have been given by one who has perjured himself. Such a restriction on the lawful function of the court cannot stand and, when made a part of the instructions of the law officer, we will not pause to speculate whether there was testimony which the jury might have, but for the erroneous advice, rejected. United States v Robbins, supra. In short, all issues of guilt or innocence are factual and must be established to the satisfaction of the court-martial. A substantial restriction on its right to ex ercise that function must be regarded ás an unwarranted invasion of its exclusive province and, hence, prejudicial. The decision of the board of review is reversed, and the record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered. Judge Kilday concurs. This case has been before us previously, and we at that time set aside other charges and ordered them dismissed. See United States v Schoenberg, 16 USCMA 425, 37 CMR 45. The error now before us was not then assigned or considered. The matter arose on accused’s petition from the decision of the board of review on further review, following our decision in United States v Robbins, 16 USCMA 474, 37 CMR 94. Quinn, Chief Judge (dissenting): As the author of the opinion in United States v Robbins, 16 USCMA 474, 37 CMR 94, I can only say I did riot intend it to hold, and I do not believe it holds, that the erroneous instruction on the effect of partially false testimony is reversible error, regardless of the absence of any circumstance indicating" }, { "docid": "14413218", "title": "", "text": "Opinion of the Court Paul W. Brosman, Judge: Accused was convicted by Navy special court-martial of several offenses. However, the nature of these is unimportant here, since the issues raised for our consideration are entirely procedural and jurisdictional, and quite unrelated to the substantive charges in the case. The convictions were affirmed by a board of review in an opinion dated April 16, 1952. Notice of this fact was received by the accused on April 29. Thereafter, on May 20, counsel, who had represented him before the board of review, filed with the board a motion for reconsideration of its decision. In the meantime, however, accused, without the knowledge of appellate counsel, had signed and placed in channels a mimeographed form styled “Accused’s Petition For Grant of Review Before The Court of Military Appeals.” In this document he averred that he was aggrieved by the decision of the board of review, that he thereby petitioned for a grant of review in this Court, and that he requested assignment of appellate defense counsel to act here in his behalf. The “Petition,” dated May 15, after routing through appropriate headquarters, reached the office of The Judge Advocate General, United States Navy, on June 3, 1952, and was received by the board of review on June 11. It is appropriate to note that at no time was it forwarded to this Court as a petition. However, it is attached to the record now before us. On June 13, the board of review denied the motion for reconsideration, which it had not dealt with theretofore. The basis for its action was its conclusion that accused’s petition for review by this Court had operated to divest it of jurisdiction in the cause and had effectively vested jurisdiction here. Thereupon, The Judge Advocate General, United States Navy, certified to us the question of the correctness of the decision of the'board of review. II Quite clearly, a board of review has power to entertain a motion for reconsideration of a decision rendered by it, but just as obviously a board and this Court cannot exercise jurisdiction over" }, { "docid": "22766630", "title": "", "text": "been filed with this Court, appellate defense counsel moved for its dismissal, upon two grounds: first, the certificate was not filed within the time prescribed by the rules of the Court; and second, since the board of review dismissed the charges because the evidence was insufficient to support a valid specification; the case could not be considered as being within the scope of our appellate review powers. We concluded the grounds were not well taken for the reasons hereinafter set out. The original decision of the board of review was issued on October 22, 1952, and according to the briefs, was received by The Judge Advocate General of the Navy on the following day. The certificate for review was filed with this Court on December 8, 1952, which under normal procedure was beyond the time limitation of thirty days set by the Court rules for such action. (See Rule No. 23, Rules of Practice and Procedure, United States Court of Mili-tax-y Appeals.) However, subsequent to the receipt of the original board of review decision and prior to the filing of the certificate with this Court, appellate Government counsel filed with the board of review a motion requesting reconsideration of the decision. This motion was denied on November 24, 1952, and thus the thirty-day period permitted by the Court rules did not expire until December 24, 1952. In United States v. Reeves (No. 453), 1 USCMA 388, 3 CMR 122, decided May 15, 1952, we upheld the authority of boards of review to entertain motions for reconsideration where such motions are made prior to the time an appeal has been lodged with this Court or before The Judge Advocate General has returned the case to the convening authority for further action in accordance with the board’s decision. Here the motion was made before any action was taken in the case which would divest the board of review of jurisdiction to reconsider its holding. In so holding we desire to make' it crystal clear that we find nothing in the record to lead us to believe that the motion was not made" }, { "docid": "14537286", "title": "", "text": "Judge Advocate General, United States Navy, certified to this Court the correctness of this board of review decision. We held in United States v. Zimmerman (No. 261), 1 USCMA 160, 2 CMR 66, decided February 7, 1952, that the procedural errors assigned by the board had not operated to the substantial prejudice of the accused. This action was taken as to the first ground above on the basis of the plea of guilty and under the authority of United States v. Lucas (No. 7), 1 USCMA 19, 1 CMR 19, decided November 8, 1951. As to the second ground, we found the factual basis for the board’s action not well taken. We did not close our consideration at that point, however, but went on to rule that the record disclosed error in an improper presentation of prior convictions to the court-martial, basing our decision on United States v. Carter (No. 159), 1 USCMA 108, 2 CMR 14, decided Jan. 18, 1952. We announced, as in Carter, that this error operated to the substantial prejudice of the accused, and remanded the case to The Judge Advocate General, United States Navy, “for action not inconsistent with the views expressed herein.” It was our thought at that time that The Judge Advocate General would refer the matter to the board of review which had considered the case, whose members would thereafter affirm so much of the sentence as deemed appropriate in the absence of the prior convictions improperly considered. See Uniform Code, supra, Article 66(c), 50 USC § 653. The case was referred to the board of review, which, on motion of appellate defense counsel, heard oral arguments. The board has now ruled, one member dissenting, that the principle forbidding double jeopardy precludes it from reinstating any part of the sentence, and that consequently its prior ruling of dismissal must stand. The Judge Advocate General has now certified three principal questions to us. We shall not set out each question at this point, but shall state each as we consider it. II Did the original decision of the board of review in this" }, { "docid": "5776220", "title": "", "text": "The Judge Advocate General, to reconsider its decision prior to the time a petition for review has been served and filed by an accused, or a certificate by a Judge Advocate General has been filed, or a rec-cord of trial in a case involving an automatic appeal has reached this Court,”. there remains no authority to reconsider once one of these events has occurred. Also, of course, a board of review lacks jurisdiction if a petition for reconsideration is filed after the expiration of 30 days from the date the accused is notified of its decision — since at that point appellate review has already been completed, and a terminus to litigation is required. Thereafter action must be taken through other routes. See Article 73. Compare United States v. Ferguson, 5 USCMA 68, 17 CMR 68 (opinion of Judge Brosman); Hazel-Atlas Glass Company v. Hartford Empire Company, 322 US 238, 88 L ed 1250, 64 S Ct 997. IV With respect to the effect of a peti tion for reconsideration on the running of the 30-day appeal period provided by Article 67(c), we feel sure that United States v. Sell, supra, is dispositive. There a certificate was filed by The Judge Advocate General more than 30 days after the original decision of a board of review, but within 30 days from the time the board had denied a motion for reconsideration. We held that the filing of the motion delayed the inception of the 30-day period for certification. Similarly, in United States v. Weeden, supra, we ruled that an appeal was premature if taken prior to the disposition of a motion for reconsideration filed with a board. Accord: United States v. Rice [CM 366858], 14 CMR 379. The Supreme Court has adopted an identical view with respect to the beginning of the period within which an appeal may be taken, or a writ of certiorari sought. Citizens’ Bank of Michigan City v. Opperman, 249 US 448, 63 L ed 701, 39 S Ct 330; Chicago Great Western Railway v. Basham, 249 US 164, 63 L ed 534, 39 S Ct" }, { "docid": "5776206", "title": "", "text": "Opinion of the Court Paul W. BROSMAN, Judge: Private Sparks, the accused in the case before us, was tried by a general court-martial and found guilty under two specifications alleging desertion, in violation of the Uniform Code of Military Justice, Article 85, 50 USC § 679. The findings, and the sentence — to dishonorable discharge, total forfeitures and confinement at hard labor for two years — were approved by the convening authority, and thereafter affirmed by a board of review in the office of The Judge Advocate General, United States Army. The decision of the board, rendered April 12, 1954, was transmitted three days later by The Judge Advocate General to the officer, then exercising general court-martial jurisdiction over the accused. On April 20, 1954, the latter acknowledged receipt of the decision. Six days thereafter appellate defense counsel petitioned the board' of review for reconsideration of its holding, in light of a decision handed down by this Court on April 16, 1954. United States v. Redenius, 4 USCMA 161, 15 CMR 161. The board concluded, however, that it was without jurisdiction to entertain the petition, and returned it and the record of trial to The Judge Advocate General. Thereupon his office certified the following three questions to us: “(1) Was the board of review correct in holding that it was without jurisdiction to entertain accused’s petition for reconsideration? “(2) When does a board of review lose jurisdiction to entertain a petition for reconsideration? “(3) What effect, if any, does the filing during the statutory 30-day appeal period (Art. 67c) of a petition for reconsideration with a board of review have on the running of such statutory period?” Also, the accused has submitted to us a petition for grant of review which assigns the same error relied on in the petition for reconsideration. Government appellate counsel have conceded the presence of this error. II Under the authority of Article 66 (/), Uniform Code of Military Justice, 50 USC § 653, The Judge Advocates General of the several Armed Forces have prescribed certain Uniform Rules of Procedure for Proceedings in and before" } ]

[ { "docid": "3948714", "title": "", "text": "that: A lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case. The rationale for this rule is found in Ethical Consideration 7-28: Witnesses should always testify truthfully and should be free from any financial inducements that might tempt them to do otherwise. A lawyer should not pay or agree to pay a nonexpert witness an amount in excess of reimbursement for expenses and financial loss ■ incident to his being a witness; however, a lawyer may pay or agree to pay an expert witness a reasonable fee for his services as an expert. But in no event should a lawyer pay or agree to pay a contingent fee to any witness. (Emphasis added) Swan has admitted that, pursuant to the Swan Agreement, his payment in this case will be “contingent to a substantial extent” upon the outcome of the case and that he is a central fact witness for plaintiffs. Thus, his testimony is in direct conflict with Rule 7-109(C). Case law confirms that witnesses should not be paid on a contingency basis. In Person v. Association of the Bar of the City of New York, the Court of Appeals for the Second Circuit explained that Rule 7-109(C) has been incorporated into the laws of New York and reflects a legislative judgment of “the need for discouragement of contingent fee arrangements.” 554 F.2d 534, 538 (2d Cir.1977). The Court continued: “[disciplinary Rule 7-109 C was promulgated to insure that judicial proceedings in New York were free of false testimony which might result if expert witnesses were paid on a contingent fee basis.” 554 F.2d 534, 538. More recently, in Cosgrove v. Sears Roebuck and Co., this Court held that where an expert witness was to receive payment only if plaintiff won the case, Rule 7-109 was violated, for the fee arrangement was “contingent on its face.” The testimony of the expert witness was thus precluded. No. 81 Civ. 3482 (CSH) (S.D.N.Y. Dec. 16, 1987) [1987 WL 33595] [1987 U.S." } ]

[ { "docid": "1735916", "title": "", "text": "is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’ ” Link v. Wabash, 370 U.S. 626, 634, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962) (quoting Smith v. Ayer, 101 U.S. 320, 326, 25 L.Ed. 955 (1879)). Townley & Updike was thus York’s agent for purposes of receiving papers relevant to the arbitration as well as making, or declining to make, objections on York’s behalf. To hold otherwise would invite chaos. York argues further that its objection was timely because it was made before the arbitration panel issued its award. However, the most natural meaning of the word “proceeds” in Commercial Rule 38 encompasses participation in the formal arbitration proceeding at any stage. We thus hold that Rule 38 requires that an objection based on facts known before the beginning of the arbitration proceeding may not be raised after the proceeding begins. York clearly participated in that proceeding knowing the facts on which its belated objection was based. The decisions on which York relies are wholly inapposite. For example, in Cook Industries, Inc. v. C. Itoh & Co., 449 F.2d 106 (2d Cir.1971), we affirmed the denial of a motion to vacate an arbitration award. We held that the appellant was “fully aware” of the facts supporting its allegation of arbitrator partiality at the time the dispute was submitted to arbitration. We observed that a party “cannot remain silent, raising no objection during the course of the arbitration proceeding, and when an award adverse to him has been handed down complain of a situation of which he had knowledge from the first.” Id. at 107-OS. York argues that because it raised an objection “during the course of the arbitration proceeding,” Cook Industries supports its position. Although York’s objection during the arbitration proceedings distinguishes the instant case from Cook Industries, Cook Industries did not hold that a party aware of the grounds for an objection may nevertheless delay that objection so long as the award has not been made. York’s reliance on Rose v. Travelers Insurance Co., 118 A.D.2d 844, 500 N.Y.S.2d 330" }, { "docid": "1735917", "title": "", "text": "For example, in Cook Industries, Inc. v. C. Itoh & Co., 449 F.2d 106 (2d Cir.1971), we affirmed the denial of a motion to vacate an arbitration award. We held that the appellant was “fully aware” of the facts supporting its allegation of arbitrator partiality at the time the dispute was submitted to arbitration. We observed that a party “cannot remain silent, raising no objection during the course of the arbitration proceeding, and when an award adverse to him has been handed down complain of a situation of which he had knowledge from the first.” Id. at 107-OS. York argues that because it raised an objection “during the course of the arbitration proceeding,” Cook Industries supports its position. Although York’s objection during the arbitration proceedings distinguishes the instant case from Cook Industries, Cook Industries did not hold that a party aware of the grounds for an objection may nevertheless delay that objection so long as the award has not been made. York’s reliance on Rose v. Travelers Insurance Co., 118 A.D.2d 844, 500 N.Y.S.2d 330 (2d Dept.1986), is similarly misplaced. Interpreting an AAA waiver rule identical to Commercial Rule 38, the court held that a party’s participation in two arbitration proceedings waived the right to object to the composition of the panel. Again, however, Rose did not hold that an objection made at any time before the award is timely. Finally, weight must be given to the fact that the AAA interpreted its Commercial Rules to permit the arbitration panel to hear the case. The parties agreed that the AAA should administer the arbitration process and apply its Commercial Arbitration Rules. Given the parties’ designation of the AAA as the supervisory authority regarding the resolution of disputes under the agreement, the AAA’s view of the meaning of its rules is of considerable significance. B. Attorneys’ Fees Cross-appellants argue that Paragraph 2(A) of the arbitration award supports a claim for attorneys’ fees. Paragraph 2(A) provides that [w]ithin thirty (30) days from the date of transmittal of this Award to the Parties, CLAIMANT shall satisfy and discharge the personal guarantees given by" }, { "docid": "18421638", "title": "", "text": "than merit. See 41 C.F.R. § 1-1.500 (1984); see also Quinn v. Gulf & Western, 644 F.2d at 93 (“[Contingent fee] arrangements could easily result in higher prices for government goods and services as well as contracts which would not have been awarded had all the potential contractors been afforded equal consideration.”) These objectives can also be ascribed to the Iranian Influence Law. In order to enforce the Letter Agreement in this case, the Court would essentially have to disregard these objectives. Thus, for the reasons set forth above, the Court concludes that the letter agreement is unenforceable. CONCLUSION The defendant’s motion for summary judgment is granted. The plaintiff failed to adduce any evidence showing that Phibro’s corporate entity should be disregarded or that Phibro was a party to the contract. The plaintiff’s quantum meruit claim is barred by the statute of limitations. Further, the doctrine of illegality provides an independent basis for dismissing the plaintiff’s complaint. So Ordered. . For the purposes of this motion, the defendant assumes, arguendo, that the letter agreement constitutes a valid contract. Nevertheless, Phibro contends that Beresiner exceeded the scope of his authority when he signed the letter agreement with Kashfi, and therefore the letter agreement is not binding on either Phibro or its subsidiaries. The Court does not reach that issue. . The letter agreement dated May 5, 1976 reads as follows: Mr. A.M. Kashfi 243 Takht-e Jamshid Tehran, Iran Re: Purchases by the Engelhard Group of additional Iranian Crude Oil linked to the Supply and/or Finance of Major Iranian Civil and Military Development Projects and of Equipment. Dear Kay, In view of the services you have rendered and will be rendering in the future in connection with the afore-mentioned transaction which we first proposed to the Iranian Government in March this year, and have set out again in detail today to the Minister of the Imperial Court, of which you have received a copy, We herewith confirm our undertaking to pay you for consultancy and services as outlined herein, one percent of the f.o.b. invoice value of each shipment of crude oil" }, { "docid": "10298317", "title": "", "text": "130, 64. It should be noted that the bond, mortgage and deed remained in escrow long after the institution of this suit in the Bankruptcy Court, almost a full year from the expected August 31, 1979 date of title transfer. Furthermore, both prior to and on numerous occasions after the alleged transfer of title was to have taken place, Bailey warranted to three lending institutions with which he was negotiating mortgage loans, between July and October, 1979, that he was the owner of the Property in fee simple. Cook admitted that on one of these occasions, Kaye, Vice President of WJC, was present at the transaction and was fully aware of Bailey’s statement. In fact, Cook admitted that on two of the occasions Bailey was encouraged to misrepresent his ownership of the property so that refinancing of outstanding loans could be obtained. Cook Dep. Tr. 533, 538. Conduct such as this is totally inconsistent with the desire to claim ownership. In opposition to this admission, debtor argues that Bailey’s asking for a 30-day extension of the escrow agreement in July, 1979, with the transfer of ownership to WJC impending, clearly indicates that the escrow had not been abandoned. We agree that up to this particular point in time, July, 1979, the Court would have difficulty in concluding that the escrow had been abandoned. However, the subsequent totality of experiences necessarily leads us to the opposite conclusion. In contradiction to prior testimony by Cook, debtor argues that it cannot “be said that Walter Cook acquiesced in the grantors’ holding of themselves out as the unbridled owners of the property ... [because] the property was openly managed by Cook’s management corporation, Mid-City.” Debtor’s Memorandum of Law, pp. 13, 14. This denial is directly contradicted by the facts. During the thirteen months between July, 1978 and August, 1979, Mid-City was not the only company to manage the Property. Cook testified that beginning in the early part of 1979 and continuing into July, the Fremar Management Corp., under contract with Bailey and not connected in any way to Cook’s enterprises, held these management duties." }, { "docid": "21043651", "title": "", "text": "court denied the motion to amend, noting that § 487 was hardly new, having been in effect in its present form for some two decades, and finding that S & C would be prejudiced by plaintiffs’ inordinate delay in making this motion. In all the circumstances, we see no abuse of discretion in the denial of the motion. C. The Disqualification of Swan Finally, plaintiffs challenge the district court’s order disqualifying Swan from participation in this case as their attorney and barring him from receiving a contingent fee. They contend principally that Disciplinary Rules 5-101(B) and 7-109(C) of the Code of Professional Responsibility were not applicable because the fee agreement between Swan and Cooper-Brown states that Swan’s “rights to payment ... shall be entirely independent of [his] testimony and shall not be affected if [he does] not testify,” and that the court should have refrained from disqualifying Swan because Disciplinary Rule 5-101(B)(4) makes an exception for cases in which the client will suffer a “substantial hardship” if the attorney cannot represent him. We reject these arguments. The disqualification of an attorney in order to forestall violation of ethical principles is a matter committed to the sound discretion of the district court. See, e.g., Allegaert v. Perot, 565 F.2d 246, 248 (2d Cir.1977); W.T. Grant Co. v. Haines, 531 F.2d 671, 676 (2d Cir.1976); Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir.1975). Disciplinary Rule 5-101(B) of the ABA Code provides that “A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he ... ought to be called as a witness_” Disciplinary Rule 7-109(C) provides that “A lawyer shall not ... acquiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case.” Notwithstanding the language of Swan’s fee agreement, purporting to make his right to payment independent of his testimony, the facts remain that (a) the agreement gave Swan the right to receive one-sixth of any fees received in this by Cooper-Brown, (b) Cooper-Brown’s fee was contingent on plaintiffs’ recovery," }, { "docid": "18421637", "title": "", "text": "also noted that enforcing the contract would undermine the public policy of protecting government officials against corrupting influences. 644 F.2d at 93. Obviously the letter agreement in the instant case is not invalidated by the feder al Procurement Statute, since the United States government was not involved. However, Kashfi is seeking compensation for the efforts he expended in attempting to secure a contract for the defendant with the government of Iran, which is exactly the kind of practice that Congress condemned when it enacted the Procurement Statute in this country. The Iranian Influence law is similar to the federal Procurement Statute, and— based on the plain language of the Influence Law — it appears that the objectives of both laws are the same. The purpose of the Procurement Statute is threefold: (1) to prevent the use of improper influence in connection with securing government contracts; (2) to eliminate arrangements which encourage inequitable and exorbitant fees that bear no reasonable relationship to the services rendered; and (3) to prevent contracts being awarded on a basis other than merit. See 41 C.F.R. § 1-1.500 (1984); see also Quinn v. Gulf & Western, 644 F.2d at 93 (“[Contingent fee] arrangements could easily result in higher prices for government goods and services as well as contracts which would not have been awarded had all the potential contractors been afforded equal consideration.”) These objectives can also be ascribed to the Iranian Influence Law. In order to enforce the Letter Agreement in this case, the Court would essentially have to disregard these objectives. Thus, for the reasons set forth above, the Court concludes that the letter agreement is unenforceable. CONCLUSION The defendant’s motion for summary judgment is granted. The plaintiff failed to adduce any evidence showing that Phibro’s corporate entity should be disregarded or that Phibro was a party to the contract. The plaintiff’s quantum meruit claim is barred by the statute of limitations. Further, the doctrine of illegality provides an independent basis for dismissing the plaintiff’s complaint. So Ordered. . For the purposes of this motion, the defendant assumes, arguendo, that the letter agreement constitutes" }, { "docid": "2315717", "title": "", "text": "these bases, as well as the related issues of the impact of this conduct on the class certification and Rule 11 motions, will be discussed below. I. Disqualification For Conduct Relating to the Origin of this Case. Although Gomberg’s conduct from the inception of this case and throughout the subsequent proceedings is sufficient in itself to require disqualification, this Court is particularly concerned by his role in the December 3, 1982 tape recorded meeting between himself, Wagner, and Travis. After a review of all the facts, this Court concludes that he has violated at least two of the disciplinary rules of the ABA Model Code of Professional Responsibility and of the Illinois Code of Professional Responsibility, Ill.Rev.Stat. ch. 110A, Rules 1-101 to 9-102 (1981). DR 7-109(C) provides in pertinent part: A lawyer shall not pay, offer to pay or acquiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case. Wagner’s promise to remit up to 20% of any of his potential recovery in this case to Travis for his testimony was contingent upon the outcome of this case. There is no question that Gomberg, at the least, was aware of this arrangement between Wagner and Travis even before the taping of the December 3, 1982 meeting began. Indeed, he prearranged with Wagner to absent himself from the room for a short time so that Wagner and Travis could discuss the financial arrangements. Thus, Gomberg clearly violated DR 7-109(C). Wagner responds briefly in Gomberg’s defense by raising two points. First, he asserts that neither Gomberg nor Wagner ever intended to pay Travis any money for his testimony. It makes no difference that Gomberg and Wagner never intended that money actually change hands because the effect on the potential witness is the same: he is induced by the promise of potential payment to give testimony he otherwise might not have given. Moreover, the effect on the integrity of the judicial system is the same: the witness’s testimony is inherently unreliable because of the promise of payment. As stated by one" }, { "docid": "3948723", "title": "", "text": "state law claim. The relevant New York law is CPLR 4512, which states: Thus, plaintiffs contend, Swan’s contingent fee arrangement is not prohibited. [ejxcept as otherwise expressly prescribed, a person shall not be excluded or excused from being a witness, by reason of his interest in the event or because he is a party.... However, as seen, Rule 7-109(C) “expressly prescribes” a person from testifying as a witness when he or she has a contingent interest in the outcome of the case. See Person v. Association of the Bar of the City of New York, 554 F.2d 534, 536, 538 (2d Cir.), cert. denied, 434 U.S. 924, 98 S.Ct. 403, 54 L.Ed.2d 282 (1977). Further, as part of the ABA Code of Professional Responsibility, Rule 7-109(C) has been recognized in New York “as providing appropriate guidelines for proper professional behavior.” Fund of Funds v. Arthur Andersen & Co., 567 F.2d at 227 n. 2, citing NCR Organization, Ltd. v. Bregman, 542 F.2d at 129 n. 2. Thus, the payment to Swan of a contingency fee is improper. While it is true, as plaintiffs argue, that “[t]he code provisions cannot be applied as if they were controlling statutory or.decisional law,” Rule 7-109(C) will be applied here in the absence of conflicting authority. Invalidation of the Swan Agreement The conclusion that the Swan Agreement is improper presents four alternatives: (1) dismissal of the case, (2) disqualification of Swan and/or Cooper as counsel to plaintiffs in this action, (3) preclusion of Swan’s testimony, and (4) invalidation of the Swan Agreement. Bache does not request dismissal, but instead urges that Swan’s testimony be precluded, and cites Cosgrove v. Sears Roebuck and Co., supra, for the proposition that testimony should be excluded when Rule 7-109(C) has been violated. Cosgrove, however, is distinguishable on the grounds that the court precluded the testimony of an expert witness, where the only injury to the opposing party was the delay which it would take to hire a new expert. Bache also cites In re Mushroom Transp. Co., Inc., 70 B.R. 416, 70 Bankr.L. Rep. 416 (Bankr.E.D.Pa.1987), in which the" }, { "docid": "22831980", "title": "", "text": "the corresponding sentencing phases was the number of witnesses testifying, while the substance of their testimony was very similar. Counsel at the Cook County trial made a strategic decision in regard to what mitigating evidence to present. In examining the substance of the testimony, this Court finds that trial counsel’s actions were reasonable in light of the circumstances at the Cook county trial. To determine whether this legal conclusion was objectively reasonable, we examine each of the witnesses who testified in Lowndes County but not in Cook County. First, Appellant’s former wife divorced him shortly before the Cook County proceedings. Ms. Griner testified that Appellant’s ex-wife was too upset to testify. All three Cook County attorneys agreed that, due to the recent divorce, calling Appellant’s ex-wife would be imprudent. Even Ms. Alderman, who was markedly biased in favor of Appellant at the 1985 habeas hearing, conceded a strategic decision was made not to call Appellant’s ex-wife. Second, besides Appellant’s ex-wife, three of the four other relatives who testified in Lowndes County did not testify in Cook County. Only two relatives testified at the Cook County trial — Appellant’s sister (who also testified in Lowndes County) and Appellant’s niece (who did not testify in Lowndes County). As the state habeas court indicated, however, the testimony of the five Lowndes County relatives was substantially the same as the testimony of the two Cook County relatives. Calling the three additional relatives to the stand would have been cumulative. More of the same is not necessarily better. See Chandler, 218 F.3d at 1319. Third, Ms. Griner’s testimony in Lowndes County was not substantially different from the testimony of Appellant’s sister and niece. More importantly, however, rules of professional conduct generally disapprove of lawyers testifying at proceedings in which they are also advocates. See, e.g., Model Rules of Profl Conduct R. 3.7(a) (2001) (stating that “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness....”); Model Code of Profl Responsibility EC 5-9 (1969) (stating, “[a]n advocate who becomes a witness is in the unseemly" }, { "docid": "8822788", "title": "", "text": "128, 134 (9th Cir.1987), cert. denied, 488 U.S. 819, 109 S.Ct. 59, 102 L.Ed.2d 37 (1988). Here, the unpaid sanctions were imposed only against counsel. Appellees have cited no authority for the proposition that dismissal is proper solely on the ground that counsel failed to pay a monetary sanction imposed against counsel. This is not surprising given that dismissal is “the most severe penalty” and is authorized only in “extreme circumstances.” United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 603 & n. 5 (9th Cir.1988). Appellees’ counsel appear to share the blame for the failure to file the joint exhibit and witness list-the only other ground on which the court based its dismissal. Under these particular circumstances, we deem it inappropriate to impose dismissal, and in effect the entire penalty upon the clients for recalcitrant behavior by their counsel as well as the opposition. Attorney Cook also appeals the district court’s imposition of money sanctions against him. The district court has great latitude in imposing sanctions for discovery abuse, and this court reviews such decisions for abuse of discretion. In re Akros Installations, Inc., 834 F.2d 1526, 1530 (9th Cir.1987). Here, the magistrate judge found several items Cook and other plaintiffs’ counsel requested either duplicative of an earlier request which had been denied or so frivolous on their faces as to justify an award of attorneys fees. These October 1992 requests were duplicative only as to Cook (rather than all plaintiffs’ counsel) because Cook alone had propounded the earlier request in November 1991. Upon plaintiffs’ motion for review of the order, the district court reviewed the parties’ arguments and the relevant documents and concluded the magistrate judge’s imposition of sanctions was not clearly erroneous or contrary to law. On the record and briefs submitted, we cannot say the district court abused its discretion in imposing the money sanctions against Cook. Accordingly, we REVERSE the district court’s order dismissing this action. We AFFIRM the district court’s imposition of monetary sanctions against attorney Cook. . Krueger v. Pelican Prod. Corp., No. CIV—87—2385-A (W.D.Okla. Feb. 24, 1989)" }, { "docid": "9556609", "title": "", "text": "MEMORANDUM BRUCE FOX, Bankruptcy Judge: On March 24, 1986, this court entered an order authorizing the debtor to employ Deric Associates, Inc. (“Deric”) to assist the debtor in collecting monies allegedly due the debtor from Transport Insurance Group. The order authorized the compensation of Deric on a 10% contingent fee basis as to all funds collected from the insurance company. Subsequently, on August 26, 1986, the debtor commenced this adversary proceeding. Defendant Transport Insurance Co. (“Transport”) has filed a motion in limine to preclude the debtor from calling Deric as a witness at trial on the ground that the contingent fee arrangement bars Deric from testifying as an expert. Transport also requests that the court preclude Deric from assisting in the preparation of any witness’ trial testimony and deny the debt- or the right to use at trial any documents prepared by Deric. For the reasons set forth below, the motion will be granted in part and denied in part. The main thrust of Transport’s argument is that Code of Professional Responsibility expressly forbids contingent fee arrangements for witnesses. See Code of Professional Responsibility DR 7-109(C), EC 7-28. Such arrangements have been criticized with respect to expert witnesses in particular. E.g., Gediman v. Sears, Roebuck & Co., 484 F.Supp. 1244 (D.Mass.1980). Contra Comment, Why Not Contingent Fees for Expert Witnesses?, 39 U.Pitt.L.Rev. 511 (1978). The debt- or counters by pointing out that Deric was not hired on a contingent fee basis to be an expert witness at trial. Rather, according to the debtor, his testimony is merely a consistent and logical part of his overall court-approved role as an insurance professional collecting money allegedly due to the estate. The debtor also points out that Transport has cited no case in which a witness’ testimony has actually been barred because his compensation was governed by a contingent fee agreement. [2] While the parties have not addressed the issue, it appears that this evi-dentiary issue should be determined in accordance with Pennsylvania law. See Fed.R.Evid. 601 (when state law supplies the rule of decision in a case, the competency of a witness" }, { "docid": "14272175", "title": "", "text": "contingent upon the content of his testimony or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of: 1. Expenses reasonably incurred by a witness in attending or testifying. 2. Reasonable compensation to a witness for his loss of time in attending or testifying. 3. A reasonable fee for the professional services of an expert witness. . The Code of Professional Responsibility was adopted by the American Bar Association on August 12, 1969 and became effective January 1, 1970. McKinney’s Consol. Laws of N.Y., Book 29, Judiciary Law, Appendix at 351, 499. The Association of the Bar of the City of New York, a defendant below, has not taken a separate appeal. It views itself as an investigative and prosecutorial agency of the First Department. (First Department Rules, § 603.4). Appellants’ Brief at 2. . Person moved to convene a three-judge district court below to declare unconstitutional those sections of the New York Judiciary Law which forbid the transfer for value of shares in rights in action and the retention of expert witnesses whose fee is contingent on the outcome of the suit. This motion was denied below. Person v. Association of the Bar of the City of New York, 414 F.Supp. 139 (E.D.N.Y.1976). Person then moved for a summary declaratory judgment solely on the issue of the validity of DR 7-109 C. . See published opinions in Nabcor action: 332 F.Supp. 280 (S.D.N.Y.1971); 60 F.R.D. 476 (1973); 376 F.Supp. 620 (S.D.N.Y.1974). . Person had moved pursuant to Fed.R.Civ.P. 41(a)(2) to dismiss all claims not adjudicated by grant of the summary judgment. The court granted his motion and entered summary judgment declaring DR 7-109 C unconstitutional on August 12, 1976 in accord with its Memorandum and Order of June 25, 1976. Joint Appendix 177-79. . Appellants argue that “DR 7-109 C does not and did not prevent plaintiff from arranging with an expert to testify on a contingent fee basis provided DR 7-109 C was declared unconstitutional.” Appellants’ Brief at 8. This argument is circular and without merit. It is the constitutionality of" }, { "docid": "3948725", "title": "", "text": "Court barred the testimony of an individual who was hired to assist the debtor in the collection of sums in return for a court-approved contingency fee. However, in Mushroom, the Court relied primarily on Pennsylvania law to exclude the testimony, although it did make reference to Rule 7-109(C). Swan and counsel to the plaintiffs have already considered the possibility that their agreement will be held unethical. The Swan Agreement provides that if the arrangement is held improper, Swan’s entitlement to payment will be reduced or modified. However, Bache and Sullivan and Cromwell claim that it is too late to use this provision in the Agreement. Because defendants have already taken Swan’s deposition and because “Swan's deposition testimony, to which he will undoubtedly adhere at trial, is indelibly tainted by the strong financial inducement he has been given to support plaintiff’s claims,” they contend that preclusion of his testimony is the only solution. Of course, Swan’s credibility, fee or no, will certainly be at issue if his testimony is permitted. The principal difficulty is that Swan’s testimony on the facts provides direct evidence as to the conduct of the defendants. If motions to disqualify attorneys require “judicial scrutiny to prevent literalism from ... overcoming substantial justice to parties,” J.P. Foley & Co., Inc. v. Vanderbilt, 523 F.2d 1357, 1360 (2d Cir.1975) (Gurfein J. concurring), quoted in Norman Norrell, Inc. v. Federated Department Stores, Inc., 450 F.Supp. 127, 130 (S.D.N.Y.1978), such scrutiny is especially necessary here, where an effort has been made to preclude critical fact testimony. Substantial justice requires the testimony. However, as long as Swan will be a central witness in this case, he cannot provide legal services to Cresswell II plaintiffs. Although it is unusual to disqualify a lawyer-witness who is limiting services to out-of-court assistance, see e.g., Bottaro v. Hatton Associates, 680 F.2d 895 (2d Cir.1982); Norman Norell, Inc. v. Federated Department Stores, 450 F.Supp. 127 (S.D.N.Y.1978); Ross v. Warthen, No. 84 Civ. 4009 (CSH) (S.D.N.Y. Feb. 11, 1987), [1987 WL 7025] 1987 U.S. Dist. LEXIS 1078, Swan will be a key fact witness here. His work on" }, { "docid": "10298318", "title": "", "text": "the escrow agreement in July, 1979, with the transfer of ownership to WJC impending, clearly indicates that the escrow had not been abandoned. We agree that up to this particular point in time, July, 1979, the Court would have difficulty in concluding that the escrow had been abandoned. However, the subsequent totality of experiences necessarily leads us to the opposite conclusion. In contradiction to prior testimony by Cook, debtor argues that it cannot “be said that Walter Cook acquiesced in the grantors’ holding of themselves out as the unbridled owners of the property ... [because] the property was openly managed by Cook’s management corporation, Mid-City.” Debtor’s Memorandum of Law, pp. 13, 14. This denial is directly contradicted by the facts. During the thirteen months between July, 1978 and August, 1979, Mid-City was not the only company to manage the Property. Cook testified that beginning in the early part of 1979 and continuing into July, the Fremar Management Corp., under contract with Bailey and not connected in any way to Cook’s enterprises, held these management duties. Cook Dep. Tr. 218. A second ground argued by defendants is that even if it were determined that the escrow had not been abandoned, neither of two conditions precedent to the delivery of the deed out of escrow, delivery to a specific party in a particular manner and recording of the deed, had been met. The wording of the escrow agreement itself states that upon completion of the necessary conditions, a certain letter agreement between Bailey and Erickson and WJC was to be returned to Bailey and Erickson and that the deed, bond and mortgage were to be turned over to the Pioneer National Title Insurance Company in Rochester, New York. Judge Lifland noted further Cook s prior statement “that according to our escrow extension agreement with Bailey, all the papers should have been recorded but that Bailey asked if we would withhold the recording for another 30 days,” Cook Dep. Tr. 447, and further that “WJC would have been responsible for paying the recording fee for the document.” Cook Dep. Tr. 132. It would" }, { "docid": "23557178", "title": "", "text": "the second amendment complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Sovak subsequently filed a third amended complaint alleging various claims against Cook and Chugai. Significantly, Sovak claimed that Cook breached the Stock Redemption Agreement by not sharing any portion of the payment from Japanese Tobacco. Cook moved to dismiss So-vak’s claims in favor of arbitration, relying upon its arbitration provision. Sovak argued that Cook had waived its right to compel arbitration by previously successfully moving to dismiss the second amended complaint for failure to state a claim. The court dismissed Sovak’s claims, compelled arbitration, and stayed the proceedings as to Chugai pending the arbitration. Pursuant to the court’s order, Sovak and Cook proceeded to arbitration in Chicago, Illinois. The arbitration panel issued an award in favor of Cook, without allowing Sovak an opportunity for a hearing. So-vak then filed a motion with the district court to vacate the award. The court denied the motion and dismissed the claims against Chugai. Sovak filed this timely appeal. II A Sovak claims that Cook waived its right to compel arbitration by successfully moving to dismiss the second amendment complaint for failure to state a claim. The parties initially disagree about the applicable law governing waiver: Sovak argues that Illinois law applies, while Cook contends that federal law governs. Parties may agree to state law rules for arbitration even if such rules are inconsistent with those set forth in the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16. See Volt Info. Scis., Inc., v. Bd. of TVs., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). However, parties must clearly evidence their' intent to be bound by such rules. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 61-62, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995); Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1131 (9th Cir.2000). In other words, the strong default presumption is that the FAA, not state law, supplies the rules for arbitration. See Wolsey, Ltd. v. Foodmaker, Inc., 144 F.3d 1205, 1213 (9th Cir.1998); see also Roadway" }, { "docid": "1452793", "title": "", "text": "the arbitration agreement authorized the panel to fashion any appropriate remedy for any controversy arising out of or related to the investment. This authority included the power to award punitive damages, if the arbitrators’ believed such damages were an appropriate remedy. Consequently, this Court is unable to say that awarding punitive damages was in manifest disregard of the law and thus exceeded the broad boundaries of the panel’s authority. Defendants also request vacatur on the grounds of improper community conscience arguments and the failure of the panel to submit the award in proper time limit. To the extent that plaintiff employed community conscience arguments, which assertion is arguable at best, the defendants waived that claim by failing to object at the hearing. See Cook Industries, Inc. v. Itoh & Co. (America) Inc., 449 F.2d 106, 107-08 (2nd Cir.1971). As to the eight-day delay in filing the award, the record indicates that this problem arose because of mail and clerical delays. It is difficult to understand how defendants could have possibly been prejudiced by the delay, especially since they did not make a timely objection. The delay was de-minimus, and to vacate on this ground “would visit a harsh and unwarranted penalty upon the plaintiff who was not in any way to blame.” Tomczak v. Erie Insurance Exchange, 268 F.Supp. 185, 189 (W.D.Pa.1967) (citations omitted). Accordingly, the time delay does not mandate vacatur. Finally, defendants urge that any award of punitive damages in this case should be paid to the Florida General Revenue Fund pursuant to § 768.73(2) of the Florida Statutes. However, since this cause of action arose before July 1, 1986, § 768.73(2) does not apply here. See Fla. Stat. § 768.71 (1986). Based on the foregoing, it is ORDERED: 1. That plaintiff’s motion to file a reply memorandum is granted and the memorandum has been considered. 2. That the defendants’ request for oral argument is denied. 3. That defendants’ motion to strike plaintiff’s reply memorandum is denied. 4. That defendants’ motion to vacate or modify arbitration award is denied. 5. That plaintiffs motion to confirm award of arbitrators" }, { "docid": "6380041", "title": "", "text": "of which he is the founder and senior partner (Complex Litigation Group LLC) is a lead class counsel too, along with two of his partners in the firm. The settlement agreement designates still another firm as a lead class counsel as well; but the fee petition describes that firm as merely a class counsel. The agreement gave lead class counsel “sole discretion” to allocate the award of attorneys’ fees to which the parties had agreed among the class counsel, and Weiss proposed to allocate 73 percent of the fees to his own firm. Realistically he was the lead class counsel. Weiss’s wife — Saltzman’s daughter — is a lawyer too, and a partner in her husband’s firm. Both spouses are defendants in a lawsuit charging them with misappropriation of the assets of their former law firm, Freed & Weiss LLC, and other misconduct relating to that firm. Freed v. Weiss, No. 2011-CH-41529 (Ill. Cook County Ch. Div.). Weiss is also a defendant in a second, similar suit, Lang v. Weiss, No. 2012-CH-05863 (Ill. Cook County Ch. Div.). (The two suits are discussed in Sarah Za-vala, “Cook County Suits Involve Alleged Takeover at Freed and Weiss,” Madison-St. Clair Record, March 7, 2012, pp. 1, 8.) The Freed & Weiss firm was still another class counsel in the present case; and one of the objectors points out that “the dissolution and descent into open warfare that consumed Freed & Weiss in 2011 and 2012 clearly rendered that firm inadequate class counsel, especially in light of the articulated financial needs of the partners that drove the settlement of this case.” And six weeks ago the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission recommended in a 94-page report that the Supreme Court of Illinois suspend Weiss from practicing law for 30 months because of repeated misconduct. In re Paul M. Weiss, No. 08 CH 116 (Ill. Att’y Registration & Disciplinary Commission Hearing Board, Apr. 17, 2014). The recommended penalty is severe by Illinois standards; the state allows lawyers sanctioned with “disbarment” to apply for reinstatement to the bar after 60 (in" }, { "docid": "22143858", "title": "", "text": "would have to believe it provides strong evidence of partiality by the arbitrator. Accordingly, we reverse the judgment of the district court and remand with instructions to vacate the award. . See Sanko S.S. Co. v. Cook Industries, 494 F.2d 1260, 1264 n.4 (2d Cir.1973); Marc Rich & Co. v. Transmarine Seaways Corp., 443 F.Supp. 386, 387 (S.D.N.Y.1978). . 28 U.S.C. § 455 (1982), which is derived from Canon 3 of the Code of Judicial Conduct, provides as follows: \"(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. \"(b) He shall also disqualify himself in the following circumstances: * * * * * * “(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) Is a party to the proceeding, or an officer, director, or trustee of a party; (ii) Is acting as a lawyer in the proceeding; (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.” It is clear that Campbell would be disqualified under these rules from adjudicating the dispute at issue. . It might be thought that Justice Black’s opinion represents the views of six members of the Court, for Justice White wrote that he was \"glad to join my Brother Black’s opinion.” Commonwealth Coatings, supra, 393 U.S. at 150, 89 S.Ct. at 340 (emphasis supplied). Because the two opinions are impossible to reconcile, however, we must narrow the holding to that subscribed to by both Justices White and Black. . It is interesting to note that in at least three districts where court annexed arbitration has been established, rules have been promulgated raising the standards for arbitrators' impartiality to those governing Article III judges. See U.S. District Court, District of Connecticut, Rule 28; U.S. District Court, Eastern District of Pennsylvania, Local Rule 49; U.S. District Court, Northern District" }, { "docid": "18421641", "title": "", "text": "Group . The plaintiff claims that he was acting on behalf of Phibro and/or its subsidiaries. The defendant denies that Beresiner was acting on its behalf. For simplicity, the Court refers only to the defendant, rather than the defendant and/or its subsidiaries. . It should also be noted that Kashfi has presented no evidence to support his contention that Beresiner was employed by Phibro, and the undisputed facts contradict his contention. See discussion infra concerning piercing the corporate veil, and the relationship between Phibro and Derby. . Derby is a wholly owned subsidiary of Phibro, and is not a party in this action. It appears that any action against Derby must be pursued in the English courts. See Plaintiffs Memo at 20. . Other factors deemed important include: (1) whether there are common directors or officers; (2) whether there are separate books and accounts; (3) whether there are common business departments; (4) the extent to which contracts between the parent and subsidiary favor one over the other; and (5) the connection between the parent corporation and the contract giving rise to the suit. See Miles v. American Tel. & Tel, 703 F.2d 193, 195-96 (5th Cir.1983). . The plaintiff also had the opportunity to depose Beresiner, who had regular contact with both Derby and Phibro. It is interesting to note that at his deposition, Beresiner indicated that he has a financial interest in the outcome of this lawsuit. He testified that, in 1979, he and the plaintiff entered into a written agreement, which provides that the plaintiff will give Beresiner 10% of any money he receives if the suit is settled, or 3% of any award he receives if the case goes to trial. Beresiner Dep. at 212-13. . The defendant has submitted the affidavits of Tendler and Ludwig Jesselson, Phibro executives, to whom a number of Beresiner’s communications were addressed. Both acknowledge that Phibro received reports concerning Beresiner’s activities, but they both essentially contend that the reports were “for information purposes only,\" and that Beresiner was not acting “in any capacity for Phibro.\" Jesselson Aff. at 2. . The" }, { "docid": "11680389", "title": "", "text": "to be one of several established methods of miti gating the hardships that overly expansive reading of N.Y. Disciplinary Rule 7-109(0) might otherwise inflict. See Person, supra, 554 F.2d at 539; cf. Matter of Shore, 67 A.D.2d 526, 415 N.Y.S.2d 878 (2 Dep’t 1979) (construing expert witness agreement to fall outside ambit of N.Y. Disciplinary Rule 7-109(C) in stock appraisal proceedings). Moreover, in challenging the legality of An-nenberg’s agreement with Abbe, Fox failed to mention the final provision of N.Y. Disciplinary Rule 7-109(C) which provides that a lawyer “may advance, guarantee, or acquiesce in the payment of [a] reasonable fee for the professional services of an expert witness.” This clause would appear to exempt Annenberg’s arrangement with Abbe. Indeed, if it did not, and if New York law prohibited the employment of an expert witness unless a party realistically expected to pay a substantial fee even in the event of failure, our Person decision indicates that a serious constitutional question might arise. We likewise see no merit in the claim that Annenberg and Abbe deceived the district court. Fox had ample opportunity to develop its contingency allegation during the October, 1977 hearing and the exchange of briefs over Annenberg’s fee applications. That the district court admitted Abbe’s testimony over Fox’s protest and subsequently approved his fee application hardly means that it overestimated his prospects of compensation in the case of failure. Rather, it suggests that the district court acted with full knowledge of Annenberg’s arrangement with Abbe. Abbe rendered Fox a service ultimately worth millions of dollars and it ill behooves the company to object to the modest compensation awarded him. We therefore affirm so much of the order as awarded a fee of $12,255 to Abbe. With respect to the award of a fee to Annenberg, we reverse and remand for further proceedings consistent with this opinion. No costs. . This disagreement centered on two apparently conflicting paragraphs of the stipulation, one of which seemed to postpone transfer of the rights for the purpose of including a public offering for one year after the rights became exercisable while the" } ]

[ { "docid": "6994760", "title": "", "text": "administrative record had satisfied all the purposes of an environmental impact statement discussed in Silva v. Lynn, 482 F.2d 1282 (1st Cir. 1973). The court reasoned that this manner of compliance sufficed because: “To require a supplemental EIS be generated by this case and on the record would be a needless and meaningless gesture and would simply delay the project.” The district court’s decision, we conclude, was in violation of one of NEPA’s requirements. There are two aspects to a court’s review of an agency decision subject to the requirements of NEPA. First, the court makes a substantive review of the agency’s action to determine if such action is arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706. This substantive review, although conducted on the basis of the entire administrative record, is quite narrow in scope. The court should only assure itself that the agency has given good faith consideration to the environmental consequences of its actions and should not pass judgment on the balance struck by the agency among competing concerns. Stryker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 500, 62 L.Ed.2d 433 (1980) (per curiam). Second, a reviewing court must assess the agency’s compliance with the duties NEPA places upon it. These duties are “essentially procedural”. Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). The primary procedural mechanism embodied in NEPA is the requirement that an agency prepare “a detailed statement” discussing, inter alia, “alternatives to the proposed action”, 42 U.S.C. § 4332(2)(C). See Monroe County Preservation Council, Inc. v. Volpe, 472 F.2d 693, 699-700 (2d Cir. 1972) (discussion of alternatives the “linchpin” of an environmental impact statement). Requiring an agency to discuss alternatives within the EIS serves numerous goals. The detailed statement aids a reviewing court to ascertain whether the agency has given the good faith consideration to environmental concerns discussed above, provides environmental information to the public and to interested departments of government, and prevents stubborn problems or significant criticism from being shielded from" } ]

[ { "docid": "16754476", "title": "", "text": "240 units of housing. The PHA must move swiftly. IT IS HEREBY ORDERED that the PHA proceed as soon as possible to begin construction of the 240 public housing units, funded by HUD, needed to replace the 240 units lost due to the past and planned demolition of the high-rises at Hartford Park. The PHA is ordered to complete construction of all 240 units of replacement housing within 23 months of the date of this Opinion. PLAINTIFF’S CLAIM OF NEPA VIOLATIONS Plaintiff has alleged that the procedures used by HUD in assessing the environmental impact of the proposed demolition violate the National Environmental Policy Act of 1969 (hereinafter “NEPA”), codified at 42 U.S.C. Section 4321 et seq. HUD conducted an Environmental Assessment (hereinafter “EA”) of the planned demolition which contained a “finding of no significant impact” (hereinafter “FONSI”). Plaintiff challenges this finding as incorrect and also claims that the EA was not a good faith consideration of the environmental impact of the demolition. The First Circuit has explicated the task of the district court in reviewing an agency decision subject to the requirements of NEPA as having two aspects: First, the court makes a substantive review of the agency’s action to determine if such action is arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. Section 706. This substantive review, although conducted on the basis of the entire administrative record, is quite narrow in scope. The court should only assure itself that the agency has given good faith consideration to the environmental consequences of its actions and should not pass judgment on the balance struck by the agency among competing concerns (citation omitted). Second, a reviewing court must assess the agency’s compliance with the duties NEPA places upon it. These duties are “essentially procedural.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072 (1980). I find, upon review of the administrative record, that HUD did give good faith consideration, albeit tardy, to the environmental consequences of its" }, { "docid": "18859027", "title": "", "text": "case, the final EIS for the Connector represents the attempt of defendants to comply with these requirements of NEPA. Plaintiffs seek judicial review of the adequacy of that statement. Although “NEPA does set forth significant substantive goals for the Nation,” its “mandate to the agencies is essentially procedural.” Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). The duty of a federal court is “to insure a fully informed and well-considered decision” by the agency through its compliance with the requirements of NEPA, id.; Citizens for Balanced Environment and Transportation, Inc. v. Volpe (“Citizens for Balanced Environment II”), 650 F.2d 455, 460—461 (2d Cir. 1981). Once it has been determined that the agency has followed NEPA’s procedural requirements, “the only role for a court is to insure that the agency has considered the environmental consequences; it cannot ‘interject itself within the area of discretion of the executive as to the choice of the action to be taken.’ ” Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227-228, 100 S.Ct. 497, 500, 62 L.Ed.2d 433 (1980), quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976); Citizens for Balanced Environment II, supra, at 460-461. In determining whether the agency decision has been “fully informed and well-considered,” Vermont Yankee Nuclear Power Corp. v. NRDC, supra, 435 U.S. at 558, 98 S.Ct. at 1219, a court is governed by a “rule of reason,” under which an EIS need not be exhaustive to the point of discussing all possible details bearing on the proposed action but will be upheld as adequate if it has been compiled in good faith and sets forth sufficient information to enable the decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action, as well as to make a reasoned choice between alternatives, [citations omitted] County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1375" }, { "docid": "7248666", "title": "", "text": "to substitute its judgment for that of the agency. Id. For example, the reviewing court will defer to any reasonable path that the agency follows in fulfilling its legal obligations, regardless of what the court would have done in the agency’s place. Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc. (NRDC), 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). The agency’s action only needs to be reasonable, not the best or most reasonable. Id. at 855. This highly deferential standard of review, is not, however, a rubber stamp. Citizens Awareness Network, Inc. v. United States, 59 F.3d 284, 290 (1st Cir.1995). The relevant inquiry is whether the agency’s decision was based on consideration of relevant factors and whether there has been a clear error of judgment. Overton Park, 401 U.S. at 416, 91 S.Ct. 814. The decision must “make sense.” Puerto Rico Sun Oil Co. v. U.S., 8 F.3d 73, 77 (1st Cir.1993). Here, Plaintiffs assert that because Defendants failed to consider the cumulative impact of its NWPs 13, 14 and 26, either nationally or regionally, that its finding of no significant impact (FONSI) is arbitrary and capricious, and its decision NOT to enter into § 7 consultation with FWS regarding the environmental impact of the NWPs was clear error and not in accordance with the law as set out in the ESA, the CWA, and federal implementing regulations. 1. Corps’ decision to issue NWPs 13, 14, and 26 in violation of NEPA: NEPA obligates an agency to consider every significant aspect of the environmental impact of a proposed action. Baltimore Gas, 462 U.S. at 97, 103 S.Ct. 2246 (citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)). It, also, ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process. Id. (citing Weinberger v. Catholic Action of Hawaii, 454 U.S. 139, 102 S.Ct. 197, 70 L.Ed.2d 298 (1981)). NEPA achieves these two goals by requiring all federal agencies proposing “major Federal" }, { "docid": "15075706", "title": "", "text": "measures); NWF v. Coleman, 529 F.2d 359 (5th Cir.1976). cert. denied, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (proposed actions by others does not “insure” that agency’s actions will not cause jeopardy); Southwest Center for Biological Diversity v. Babbitt, 939 F.Supp. 49 (D.D.C.1996) (FWS’s reliance on future actions by Forest Service does not comport with the language of statute that FWS base its listing decisions on “existing” regulatory mechanisms). Based upon all of the above considerations, the Court finds that the Administrative Record is devoid of any rational basis upon which the FWS could have reasonably relied in deciding to issue the ITPs for these two projects. Therefore, because the Court finds that the permits at issue fall short of both the ESA and APA standards, they must be remanded to the agency for review and re-issuance. The plaintiff next contends that the FWS issued a “finding of no significant impact” (“FONSI”), and failed to prepare an environmental impact statement (“EIS”) as required under NEPA. Federal agencies are required under NEPA to consider the environmental consequences of proposed actions to ensure “fully informed and well considered” deci sions. Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 228, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)). Thus, NEPA requires that federal agencies “shall” prepare an EIS on all major federal actions that “significantly affect” the environment. 42 U.S.C. § 4332(C). Pursuant to Council on Environmental Quality (“CEQ”) implementing regulations, in determining whether an action may “significantly” affect the environment — and thereby require an EIS — the agency must consider the following factors: (1) the unique characteristics of the geographic area such as proximity to ... ecologically critical areas; (2) the degree to which the environmental effects of the proposed actions are highly controversial; (3) the degree to which the action may adversely affect an endangered or threatened species or its critical habitat; and (4) the cumulative impacts of its action. 40 C .F.R. § 1508.27." }, { "docid": "16754477", "title": "", "text": "reviewing an agency decision subject to the requirements of NEPA as having two aspects: First, the court makes a substantive review of the agency’s action to determine if such action is arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. Section 706. This substantive review, although conducted on the basis of the entire administrative record, is quite narrow in scope. The court should only assure itself that the agency has given good faith consideration to the environmental consequences of its actions and should not pass judgment on the balance struck by the agency among competing concerns (citation omitted). Second, a reviewing court must assess the agency’s compliance with the duties NEPA places upon it. These duties are “essentially procedural.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072 (1980). I find, upon review of the administrative record, that HUD did give good faith consideration, albeit tardy, to the environmental consequences of its actions. I now turn to the issue of the agency’s compliance with procedural duties imposed by NEPA. 24 C.F.R. 970.4 sets forth the general requirements for HUD approval of applications for demolition or disposition of public housing projects: HUD will not approve an application for demolition or disposition unless: ... (e) Demolition or disposition will meet the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. 4321, the National Historic Preservation Act of 1966, 16 U.S.C. 469, and related laws, as stated in the Department’s regulations at 24 C.F.R. Part 50. 24 C.F.R. Part 50 contains instructions that apply specifically to HUD programs, and is to be used in conjunction with 40 C.F.R. Parts 1500-1508, the regulations which establish the basic procedural requirements for compliance with NEPA and are to be followed by all Federal agencies. Pursuant to the regulations promulgated in Part 50, HUD made an evaluation of the environmental impact of the proposed demolition. Kantilal Patel, a general engineer with HUD’s Providence office, conducted a field inspection of Hartford Park on" }, { "docid": "22599666", "title": "", "text": "437 (1983) (quoting Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978)). The fundamental policy questions are “appropriately resolved in Congress and in the state legislatures”; they “are not subject to reexamination in the federal courts under the guise of judicial review of agency action.” Vermont Yankee, 435 U.S. at 558, 98 S.Ct. at 1219. Courts may set aside agency decisions “only for substantial procedural or substantive reasons as mandated by statute.” Id. The applicable statutes here are NEPA and the CWA. NEPA requires that the agency take a “hard look” at the environmental consequences of a project before taking a major action. Baltimore Gas, 462 U.S. at 97, 103 S.Ct. at 2252 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976)). It is the role of the courts on judicial review to ensure “that this legal duty is fulfilled.” Foundation on Economic Trends v. Heckler, 756 F.2d 143, 151 (D.C.Cir.1985). Congress, in enacting NEPA, meant “to insure a fully informed and well-considered decision.” Vermont Yankee, 435 U.S. at 558, 98 S.Ct. at 1219. But NEPA “does not mandate particular results”; it “simply prescribes the necessary process.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 1846, 104 L.Ed.2d 351 (1989). “If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.” Id.; see also Baltimore Gas, 462 U.S. at 97, 103 S.Ct. at 2252. Thus, “[t]he role of the courts is simply to ensure that thagency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.” Baltimore Gas, 462 U.S. at 97-98, 103 S.Ct. at 2252 (emphasis added). Like NEPA, the CWA does not articulate its own standard of review; therefore the appropriate scope of review for both NEPA claims and CWA claims is the standard set forth in the APA. 5 U.S.C. §" }, { "docid": "23322027", "title": "", "text": "the statements did not consider the Metropolitan Atlanta Rapid Transit Authority (MARTA) rail system as an alternative to the highway expansion. Section 102(2)(C)(iii) of NEPA requires a federal agency in assessing the environmental effects of a project to discuss alternatives to the pro posed action. The purpose of the alternatives requirement is to assure that the government agency as a decision-making body has considered methods of achieving the desired goal other than the proposed action. Sierra Club v. Morton, 510 F.2d 813, 815 (5th Cir. 1975). Consideration of other realistic possibilities for action forces an agency to consider the environmental effects of a project and evaluate those effects against the effects of alternatives. NEPA, however, fails to specify what “alternatives” must be considered. The concept is limited by federal regulation to reasonable alternatives, and requires consideration only of feasible, non-speculative alternatives. 23 C.F.R. § 771.81(j) (1980). See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 551, 98 S.Ct. 1197, 1215, 55 L.Ed.2d 460 (1978); Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827 (D.C. Cir. 1971); Inman Park Restoration, Inc. v. Urban Mass Transportation Administration, 414 F.Supp. 99 (N.D. Ga. 1976), aff’d sub nom., Save Our Sycamore v. MARTA, 576 F.2d 573 (5th Cir. 1978). Courts have recognized that an EIS cannot be held to be a standard of perfection. Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 297 (8th Cir.), cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1972); Inman Park Restoration, Inc., supra, 414 F.Supp. at 113. Although the procedural requirements of NEPA must be satisfied, the courts will require only the “statutory minima,” refusing to substitute their judgment for the judgment of the administrative agencies charged with satisfying the requirements of NEPA. See Vermont Yankee Nuclear Power Corp., supra, 435 U.S. at 548, 555, 98 S.Ct. at 1214, 1217. According to federal regulations, examples of alternatives that may be considered in an EIS include “alternate locations and designs, not implementing the proposed action, postponing the action, providing a lower level of service, providing a reduced" }, { "docid": "16817644", "title": "", "text": "to inform the public of the results of their research. Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, —, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983). Consequently, the duties imposed by the statute have been described by the Supreme Court as “essentially procedural.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). NEPA does not require or authorize federal agencies to abdicate their other statutory responsibilities in pursuit of environmental goals. Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28, 100 S.Ct. 497, 499-500, 62 L.Ed.2d 433 (1980) (per curiam). As NEPA imposes a limited obligation on federal agencies, it similarly requires federal courts to exercise a limited form of judicial review when faced with a challenge to an agency’s compliance with NEPA. The Supreme Court recently has said: The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious. Baltimore Gas, 462 U.S. at —, 103 S.Ct. at 2253. Justice Marshall has pointed out that the federal courts have the primary responsibility for giving meaning to the rather vaguely worded requirements of NEPA and that the development of a “ ‘common law’ of NEPA” has been the source of that statute’s success. Kleppe v. Sierra Club, 427 U.S. 390, 421, 96 S.Ct. 2718, 2735, 49 L.Ed.2d 576 (1976) (Marshall, J., concurring in part and dissenting in part). In this circuit, we have endeavored to formulate a body of law that instructs federal agencies and federal courts in their efforts to comply with and enforce NEPA. In Isle of Hope Historical Ass’n, Inc. v. United States Army Corps of Engineers, 646 F.2d 215 (5th Cir.1981) (per curiam) (adopting opinion of district court), we summarized some criteria by which we have evaluated the adequacy of an EIS: (1) whether the agency in good faith objectively has taken a hard look at the environmental consequences of a proposed" }, { "docid": "16467234", "title": "", "text": "the federal courts concerning review of NEPA challenges to agency ac tion. Although “NEPA does set forth significant substantive goals for the nation ... its mandate to the agencies is essentially procedural.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). Accordingly, the role of the reviewing court is similarly limited. “[0]nce an agency has made a decision subject to NEPA’s procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences.” Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 100 S.Ct. 497, 500, 62 L.Ed.2d 433 (per curiam) (1980). In Strycker’s Bay, the Second Circuit found that HUD had “given consideration” to the environmental requirements, of NEPA but reversed the agency’s decision because environmental factors were not given determinative weight. 100 S.Ct. at 449. The Supreme Court reversed, holding that the agencies are not required by NEPA to “elevate environmental concerns over other appropriate considerations.” Id. at 500. Once the reviewing court determines that the agency has satisfied the requirements of NEPA by taking a “hard look” at the environmental consequences of its actions, the court cannot interfere with the agency decision made within its statutory discretion. Kleppe, 427 U.S. at 410 n.21, 96 S.Ct. at 2730 n.21, cited with approval in Strycker’s Bay, 444 U.S. at 227,100 S.Ct. at 500. Plenary review of agency action is warranted only if, in view of the environmental consequences of the agency action considered pursuant to NEPA, the agency decision was “arbitrary, capricious, [or] an abuse of discretion,” 5 U.S.C. § 706(2)(A). The assessment of purely economic costs and benefits for the determination of agency action is essentially a question of policy and has traditionally been considered within the exclusive province of Congress. Oklahoma v. Guy F. Atkinson Co., 313 U.S. 508, 527-28, 61 S.Ct. 1050, 1060-61, 85 L.Ed. 1487 (1941) (no judicial review of Corps’ cost-benefit ratio available under Flood Control Act of 1936, 33 U.S.C. § 701a). Upon the enactment of NEPA, however, some courts, including this" }, { "docid": "2561606", "title": "", "text": "988 F.2d 989, 993 (9th Cir.1993); Greenpeace Action v. Franklin, 982 F.2d 1342, 1349 (9th Cir.1992). This standard of review is highly deferential. While the court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment,” and while “this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one.” ... The court may not set aside agency action as arbitrary or capricious unless there is no rational basis for the action. Friends of Earth v. Hintz, 800 F.2d 822, 831 (9th Cir.1986) (citation omitted). NEPA is essentially a procedural statute, and it is not the function of this court to direct a particular substantive outcome, or to substitute its judgment for that of the agency. See Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1980); Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978); Natural Resources Defense Counsel, Inc. v. Hodel, 819 F.2d 927, 929 (9th Cir.1987). Neither the statute [NEPA] nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions.... The only role for a court is to insure that the agency has taken a “hard look” at environmental consequences; it cannot “interject itself within the area of discretion of the executive as to the choice of the action to be taken.” Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21, 96 S.Ct. 2718, 2730, n. 21, 49 L.Ed.2d 576 (1976) (citations omitted). The plaintiffs first argue that in deciding their administrative appeals, the Regional Forester found the FEIS on the SFSR road project to be incomplete or inadequate. The court is of the opinion that the plaintiffs misconstrue the decisions of the Regional Forester. The Regional Forester addressed each of the plaintiffs’ specific concerns regarding cumulative or indirect impacts of the project and found that" }, { "docid": "23674168", "title": "", "text": "prospective application only, and we will consider the merits of APAC’s petition. See United States v. Washington, 761 F.2d 1404, 1409-10 (9th Cir.1985). B. STANDARD OF REVIEW FOR NEPA CHALLENGES We review substantive agency decisions concerning NEPA under the “arbitrary and capricious”- standard of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1994). Environmental Coalition of Ojai v. Brown, 72 F.3d 1411, 1414 (9th Cir.1995), cert. denied, - U.S. -, 116 S.Ct. 2500, 135 L.Ed.2d 192 (1996). Our role “in reviewing the sufficiency of an agency’s consideration of environmental factors is a limited one.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 555, 98 S.Ct. 1197, 1217, 55 L.Ed.2d 460 (1978). We are not free to substitute our judgment for that of the agency as to the environmental consequences of its actions. Id. Instead, our task “is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.” Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98, 103 S.Ct. 2246, 2252-53, 76 L.Ed.2d 437 (1983); see Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 492 (9th Cir.1987). If the EIS “contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences,” by making “a pragmatic judgment whether the EIS’s form, content and preparation foster both informed decision making and informed public participation,” a court should not disturb the agency’s decision. Half Moon Bay Fishermans’ Mktg. Ass’n v. Carlucci, 857 F.2d 505, 508 (9th Cir.1988) (quotation omitted). The agency’s decision should stand if the agency has taken a “hard look” at the environmental consequences of the decision. Kleppe v. Sierra Club, 421 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976). C. THE VALIDITY OF PROGRAMMATIC EISs Petitioners argue that BPA was not permitted to tier the ROD for specific contracts to the BP EIS, but instead was required to issue a separate EIS for each contract ROD. Petitioners rely on the following text from" }, { "docid": "12526711", "title": "", "text": "found individually to require reversal of the district court, together present a pattern of bad faith on the part of the Coast Guard sufficient to invalidate the FEIS. The scope of review by a court of the adequacy of an FEIS now seems settled. The Administrative Procedure Act, § 10(e), 5 U.S.C. § 706 (1976) sets forth the proper standards. In this case, the applicable subsections require us to invalidate the Coast Guard’s FEIS only if we find that the Coast Guard acted arbitrarily or capriciously, or if the Coast Guard failed to follow the procedure required by law. Under such standards, our task is “to determine whether the [F]EIS was compiled with objective good faith and whether the resulting statement would permit a decisionmaker to fully consider and balance the environmental factors,” Sierra Club v. Morton, 510 F.2d 813, 819 (5th Cir.1975). However, “once an agency has made a decision subject to NEPA’S procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences,” Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 500, 62 L.Ed.2d 433 (1980) (per curiam). Moreover, the agency need not “elevate environmental concerns over other appropriate considerations,” id.; see Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). Accordingly, we should “require full, fair, bona fide compliance with NEPA,” Lathan v. Brinegar, 506 F.2d 677 (9th Cir.1974), in order that “agencies will be fully aware of the impact of their decision,” id., but in doing so we should not “fly speck” environmental impact statements, id. We should be guided by a rule of reason. Westside Property Owners v. Schlesinger, 597 F.2d 1214, 1217 (9th Cir.1979); County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1375 (2d Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978). We should not substitute our judgment for the agency’s. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 2730 n.21, 49 L.Ed.2d 576 (1976). After careful review of" }, { "docid": "8360815", "title": "", "text": "and disclosed the environmental impact of its actions and that the decision is not arbitrary or capricious.” Id. at 97-98, 103 S.Ct. at 2252-53. However, a court may not require agencies “to elevate environmental concerns over other appropriate considerations.” Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499-500, 62 L.Ed.2d 433 (1980). Neither should a court substitute its own judgment for that of the agency. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 555, 98 S.Ct. 1197, 1217, 55 L.Ed.2d 460 (1978). If a federal agency has taken the requisite “hard look,” the agency’s decision should be affirmed. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976). The standard of review to be applied by the court to an agency’s decision is to determine whether the decision was arbitrary and capricious. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861-62, 104 L.Ed.2d 377 (1989). The court must limit its review to the administrative record supporting the decision. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 1607-07, 84 L.Ed.2d 643 (1985). A presumption of validity attaches to agency decisions made on the record. Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C.Cir.) (en banc), cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976). Plaintiffs assert that Defendants violated NEPA by failing to prepare an EIS and by failing to consider the requirements of 40 C.F.R. § 1506.1(c). At the heart of both violations is the allegation that the 1996 Interim Plan is a major federal action significantly affecting the environment. On August 5, 1996, the NPS issued a written finding, pursuant to 40 C.F.R. § 1508.13, that the proposed 1996 Interim Plan would not have a significant impact on the human environment and would not constitute an action requiring preparation of an EIS (the “Finding of No Significant Impact” or “FONSI”). See PI Mot., Ex. 3. The NPS based its FONSI on its scientific findings stated in the" }, { "docid": "4970068", "title": "", "text": "the Administrative Record. In that case the court noted that if an Administrative Record does not contain a satisfactory explanation of the federal agency’s action, the court may require through affidavit or live testimony further explanations from the agencies involved. In County of Suffolk v. Secretary of Interior, 562 F.2d 1368 (2d Cir. 1977), the Second Circuit Court of Appeals spoke of a “rule of reason” which a district court should utilize in reviewing a NEPA case involving an alleged inadequate Environmental Impact Statement. The court noted that a district court does not sit as a super agency empowered to substitute its scientific expertise or testimony presented to it de novo for the evidence received and considered by the agency which prepared the EIS. Id. at 1383. Rather, the court noted that the district court’s task is to determine whether the EIS was compiled in objective good faith and whether the resulting statement would permit a decision-maker to fully consider and balance the environmental factors. Id. Once an agency has made a decision subject to NEPA procedural requirements, the only role for the court is to insure that the agency has considered the environmental consequences; it cannot interject itself within the area of discretion of the executive as to the choice of the action to be taken. Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 500, 62 L.Ed.2d 433 (1980), citing Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21, 96 S.Ct. 2718, 2730, 49 L.Ed.2d 576 (1976). In discussing a court’s role of reviewing an agency’s decision subject to NEPA, the Supreme Court in Vermont Yankee Nuclear Power v. Natural Resources Defense Council) Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), stated: It [NEPA] is to insure a fully informed and well-considered decision, not necessarily a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decision making unit of the agency. Administrative decisions should be set aside in this context, as in every other, only for substantial" }, { "docid": "16467233", "title": "", "text": "the project were underestimated due to the Corps’ failure to consider increased costs in view of a levee extension flood control proposal, and their failure to consider adequately the project’s water quality impacts, impacts of economic and population growth in the project area, impacts on land loss, and alternatives to the project. They also argue that the Corps failed to comply with § 404 of FWCPA. Scope of Review Under NEPA Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), requires federal agencies, such as the Corps of Engineers, to prepare a “detailed statement” whenever they propose “major Federal actions significantly affecting the quality of the human environment.” By requiring an impact statement, Congress intended to insure that all agencies consider the environmental impact of their actions in the decision-making process. Kleppe v. Sierra Club, 427 U.S. 390, 410, 96 S.Ct. 2718, 2730, 49 L.Ed.2d 576 (1976). The contents of the statement are designed to insure that the effects of the project on the environment do not go unnoticed. The Supreme Court recently gave instructions to the federal courts concerning review of NEPA challenges to agency ac tion. Although “NEPA does set forth significant substantive goals for the nation ... its mandate to the agencies is essentially procedural.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). Accordingly, the role of the reviewing court is similarly limited. “[0]nce an agency has made a decision subject to NEPA’s procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences.” Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 100 S.Ct. 497, 500, 62 L.Ed.2d 433 (per curiam) (1980). In Strycker’s Bay, the Second Circuit found that HUD had “given consideration” to the environmental requirements, of NEPA but reversed the agency’s decision because environmental factors were not given determinative weight. 100 S.Ct. at 449. The Supreme Court reversed, holding that the agencies are not required by NEPA to “elevate environmental concerns over other appropriate considerations.” Id. at 500. Once the reviewing" }, { "docid": "23014319", "title": "", "text": "with the agencies’ reconsiderations. We turn now to the merits of the various appeals. For the reasons below, we uphold the district court’s determinations (1) that FHWA and the Corps breached their duties under NEPA, (2) that the Corps violated the Clean Water Act by unquestioningly relying on a FEIS that was inadequate as to the issue of aquatic impact, and (3) that those violations warranted the invalidation of the landfill permit granted by the Corps and of the FEIS with respect to fisheries issues. ’ We conclude, however, that neither the reasons given by the district court nor those raised by plaintiffs in their cross-appeal justified the district court’s order that a supplemental EIS include material on issues other than fishery resources, and we therefore modify the judgments in this respect. Finally, we vacate the court’s appointment of a special master to oversee the preparation of a supplemental EIS and the ruling that FHWA and the Corps may not act as joint lead agencies in its preparation, but we uphold the requirement that those agencies maintain adequate records to permit appropriate judicial review of their decisions reached after reconsideration. II. THE MERITS A. NEPA As the Supreme Court has stated repeatedly, although NEPA established “ ‘significant substantive goals for the Nation,’ ” the balancing of the substantive environmental issues is consigned to the judgment of the executive agencies involved, and the judicially reviewable duties that are imposed on the agencies are “ ‘essentially procedural.’ ” Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1980) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978) (“ Vermont Yankee ”)). “The only role for a court is to insure that the agency has taken a ‘hard look’ at environmental consequences; it cannot ‘interject itself within the area of discretion of the executive as to the choice of the action to be taken.’ ” Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730" }, { "docid": "10959319", "title": "", "text": "selecting alternate AGBF2. The court will accordingly deny plaintiff’s motion for partial summary judgment and grant the State and Federal defendants’ cross-motions for summary judgment as to the third cause of action. The court will next consider defendants’ motions for summary judgment as to plaintiff’s first and second causes of action. In its first cause of action, plaintiff alleges that the FEIS for Section I fails to comply with NEPA because of: (1) improper segmentation of the project; (2) inadequate consideration of alternatives; (3) failure to revise and circulate the Draft EIS; and (4) failure to consider adequately the project’s environmental impacts. Defendants contend that, as a matter of law, the FEIS is adequate in each respect. In Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980) the Supreme Court articulated the following standard for judicial review of administrative decisions in NEPA cases. In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 [98 S.Ct. 1197, 1219, 55 L.Ed.2d 460] (1978), we stated that NEPA, while establishing “significant substantive goals for the Nation,” imposes upon agencies duties that are “essentially procedural.” As we stressed in that case, NEPA was designed “to insure a fully informed and well-considered decision,” but not necessarily “a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decision-making unit of the agency.” Ibid. Vermont Yankee cuts sharply against the Court of Appeals’ conclusion that an agency, in selecting a course of action, must elevate environmental concerns over other appropriate considerations. On the contrary, once an agency has made a decision subject to NEPA’s procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot “ ‘interject itself within the area of discretion of the executive as to the choice of the action to be taken’ ” 444 U.S. at 227, 100 S.Ct. at 499-500. The reviewing court’s role is thus a limited one. Plaintiffs who challenge the adequacy of an EIS have the burden of" }, { "docid": "13738811", "title": "", "text": "a finding of no-jeopardy. Instead, they explain the proposed amendment and adopt an alternative approach, namely, a reliance on future site-specific consultations. Had this alternative been adequate, it could be said that the consulting agencies supplied a reasoned analysis in altering the course to their no-jeopardy findings. However, for the reasons described above, this alternative was not adequate. Accordingly, the undersigned agrees with plaintiffs that the consulting agencies arbitrarily and capriciously failed to reconcile their current BOs with their earlier findings. F. NEPA Challenges NEPA imposes procedural, rather than substantive requirements. See Marsh, 490 U.S. at 371, 109 S.Ct. 1851; Vermont Yankee Nuclear Power Corp. v. Natural Res. ’s Defense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Pursuant to NEPA, federal agencies must prepare an EIS for federal actions significantly affecting the environment. 42 U.S.C. § 4332(2)(C). The Court reviews an agency’s actions under NEPA “to determine if the agency observed the appropriate procedural requirements.” Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 665 (9th Cir. 1998). The Ninth Circuit has described the review of an EIS under NEPA as “extremely limited[,]” including a determination as to whether the EIS “ ‘contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences’ of a challenged action.” National Parks & Conservation Ass’n v. United States Dep’t of Transp., 222 F.3d 677, 680 (9th Cir.2000) (quoting Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 492 (9th Cir.1987)). Upon determining that the agency took a “ ‘hard look’ ” at the environmental consequences of an action, the Court’s review is at an end. Id. (quoting Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir.1992)). Plaintiffs group the alleged NEPA violations at issue here into three categories. However, as discussed below, the undersigned concludes that plaintiffs fail to establish that the 2003 FSEIS was arbitrary and capricious. 1. Assessing Significant Aquatic Habitat Impacts: An EIS must assess and disclose direct and indirect effects, 40 C.F.R. §§ 1502.16, 1508.8, and consider “ ‘every significant aspect of the environmental impact of a proposed action[,]’ ” Kern" }, { "docid": "23014320", "title": "", "text": "agencies maintain adequate records to permit appropriate judicial review of their decisions reached after reconsideration. II. THE MERITS A. NEPA As the Supreme Court has stated repeatedly, although NEPA established “ ‘significant substantive goals for the Nation,’ ” the balancing of the substantive environmental issues is consigned to the judgment of the executive agencies involved, and the judicially reviewable duties that are imposed on the agencies are “ ‘essentially procedural.’ ” Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1980) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978) (“ Vermont Yankee ”)). “The only role for a court is to insure that the agency has taken a ‘hard look’ at environmental consequences; it cannot ‘interject itself within the area of discretion of the executive as to the choice of the action to be taken.’ ” Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976) (quoting Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 838 (D.C.Cir.1972)). The primary function of an environmental impact statement under NEPA is “ ‘to insure a fully informed and well-considered decision,’ [although] not necessarily ‘a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decisionmaking unit of the agency.’ ” Strycker’s Bay Neighborhood Council, Inc. v. Karlen, supra, 444 U.S. at 227, 100 S.Ct. at 499 (quoting Vermont Yankee, supra, 435 U.S. at 558, 98 S.Ct. at 1219); see also Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 697 (2d Cir.1972). In order to fulfill its role, the EIS must set forth sufficient information for the general public to make ah informed evaluation, see id.; Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 93 (2d Cir.1973), and for the decisionmaker to “consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the" }, { "docid": "18859026", "title": "", "text": "the Connector is to link previously constructed highway segments, defendants had little choice as to the length of the project. See Final EIS at 5, 8. Any inadequacy in the number or nature of alternative routes considered, therefore, may not be attributed to the “length selected” for the Connector by defendants. See Committee to Stop Route 7 v. Volpe, supra, 346 F.Supp. at 740. Accordingly, the court concludes that the length and scale of the Connector project are sufficient to have permitted defendants to prepare a final EIS for that project only, without regard to the possible extension of 1 — 84 through eastern Connecticut. The Adequacy of the Connector EIS All parties to this action agree that, in planning the Connector, defendants were required by NEPA to prepare a “detailed statement” concerning, inter alia, “the environmental impact of the proposed action,” 42 U.S.C. § 4332(2)(C)(i); “any adverse environmental effects which cannot be avoided should the proposal be implemented,” 42 U.S.C. § 4332(2)(C)(ii); and “alternatives to the proposed action,” 42 U.S.C. § 4332(2XC)(iii). In this case, the final EIS for the Connector represents the attempt of defendants to comply with these requirements of NEPA. Plaintiffs seek judicial review of the adequacy of that statement. Although “NEPA does set forth significant substantive goals for the Nation,” its “mandate to the agencies is essentially procedural.” Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). The duty of a federal court is “to insure a fully informed and well-considered decision” by the agency through its compliance with the requirements of NEPA, id.; Citizens for Balanced Environment and Transportation, Inc. v. Volpe (“Citizens for Balanced Environment II”), 650 F.2d 455, 460—461 (2d Cir. 1981). Once it has been determined that the agency has followed NEPA’s procedural requirements, “the only role for a court is to insure that the agency has considered the environmental consequences; it cannot ‘interject itself within the area of discretion of the executive as to the choice of the action to be taken.’ ” Strycker’s Bay Neighborhood Council v. Karlen, 444" } ]

[ { "docid": "22646382", "title": "", "text": "use of patented or unpatented materials. See Ethyl Gasoline Corporation v. United States, 309 U. S. 436, 459; Morton Salt Co. v. Suppiger Co., 314 U. S. 488, 491; Mercoid Corp. v. Mid-Continent Investment Co., 320 U. S. 661, 665. The court enjoined defendants from performing or entering into any license in which the right to exhibit one feature is conditioned upon the licensee’s taking one or more other features. We approve that restriction. The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, 127, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, “The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.” It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius. But the reward does not serve its public purpose if it is not related to the quality of the copyright. Where a high quality film greatly desired is licensed only if an inferior one is taken, the latter borrows quality from the former and strengthens its monopoly by drawing on the other. The practice tends to equalize rather than differentiate the reward for the individual copyrights. Even where all the films included in the package are of equal quality, the requirement that all be taken if one is desired increases the market for some. Each stands not on its own footing but in whole or in part on the appeal which another film may have.. As the District Court said, the result is to add to the monopoly of the copyright in violation of the principle of the patent cases involving tying clauses. It is argued that Transparent-Wrap Machine Corp. v. Stokes & Smith Co., 329 U. S. 637, points to a contrary result. That case held that the inclusion in a patent license of a condition requiring the licensee to assign improvement patents" } ]

[ { "docid": "1367405", "title": "", "text": "Clause, Congress may “promote the Progress of Science and useful Arts, by securing for limited Times to Authors ... the exclusive Right to their Writings.” U.S. Const. art. I, § 8, cl. 8. The Supreme Court has explained that “[the Clause] is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). By encouraging creative expression through limited monopolies, the Copyright Clause “promotes] broad public availability of literature, music, and the other arts.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 45 L.Ed.2d 84 (1975). “[0]nce the ... copyright monopoly has expired, the public may use the ... work at will and without attribution.” Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 33-34, 123 S.Ct. 2041, 156 L.Ed.2d 18 (2003). These imaginative works inspire new creations, which in turn inspire others, hopefully, ad infinitum. This cycle is what makes copyright “the engine of free expression.” Harper & Row Publishers Inc. v. Nation Enters., 471 U.S. 539, 558, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). Congress’s power to bestow copyrights is broad. See Eldred, 537 U.S. at 205, 123 S.Ct. 769 (“[I]t is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors ... in order to give the public appropriate access to their work product”) (internal quotation marks omitted). But it is not boundless. The Copyright Clause itself limits Congress’s power as to what kinds of works can be copyrighted and for how long. For instance, in order to be copyrightable, a work must be original. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (“The sine qua non of copyright is originality .... Originality is a constitutional requirement.”). In addition, a copyright" }, { "docid": "8963830", "title": "", "text": "the original work by crooked or unsavory means may expose himself to all sorts of civil claims and criminal charges; but the question of fair use itself should be decided on the basis of the transformative character and commercial effects of the secondary use. If the use satisfies the criteria of § 107, it is fair because it advances the utilitarian goals of copyright. It might seem that it can never hurt to put bad faith at a disadvantage. But copyright is not about virtue; it is about the encouragement of creative output, including the output of transformative quotation. Its goals are not advanced if bad faith can defeat a fair use defense. The limited monopoly bestowed by the copyright statute “is intended to motivate the creative activity of authors and inventors, by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). Though the statute allows a copyright holder to recover damages suffered at the hands of an infringer, see, e.g., 17 U.S.C. § 504 (1996), the reward to be gained (or the loss suffered) is a “secondary consideration” in the copyright scheme; its “ ‘primary object ... lies in the general benefits derived by the public from the labors of authors.’ ” See United States v. Paramount Pictures, Inc., 334 U.S. 131, 158, 68 S.Ct. 915, 92 L.Ed. 1260 (1948) (quoting Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 76 L.Ed. 1010 (1932)). In Campbell, the Court affirmed that the fair use defense exists to further these same goals; it is not, as its label may connote, a privilege conferred on the well-intentioned. Fair play is no defense to infringement, see, e.g., Folsom, 9 F.Cas. at 349 (finding infringement despite having “no doubt [] that [defendant’s copying was] deemed [by him] a perfectly lawful and justifiable use of the plaintiffs work”), and bad faith should be no" }, { "docid": "22084382", "title": "", "text": "Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1187 (5th Cir.1979); see Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 428-29, 104 S.Ct. 774, 782, 78 L.Ed.2d 574 (1984); Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 (1954); Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 36, 59 S.Ct. 397, 400, 83 L.Ed. 470 (1939). The Copyright Act provides a fair return to authors and inventors by protecting their works from exploitation by others. See Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 546, 105 S.Ct. 2218, 2223, 85 L.Ed.2d 588 (1985); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2043-44, 45 L.Ed.2d 84 (1975). The district court issued its final judgment and permanent injunction based on defendants’ willful, direct and contributory copyright infringements. Accordingly, we must examine the substantive law of direct and contributory copyright infringement in order to determine if defendants’ acts violated plaintiffs’ copyrighted CMS computer program, stored in the U-30 chip. a. Direct Copyright Infringement The Copyright Act extends protection to computer programs. 17 U.S.C. §§ 101, 102(a) (1982) ; Apple Computer, Inc. v. Formula Int’l Inc., 725 F.2d 521, 524 (9th Cir.1984); Williams Electronics, Inc. v. Artic Int’l, Inc., 685 F.2d 870, 875 (3d Cir.1982). The seminal case of Baker v. Selden, 101 U.S. 99, 25 L.Ed. 841 (1879), requires federal courts to distinguish between unprotected ideas and protected expression, a concept which has been incorporated in the Copyright Act. See Harper & Row, 471 U.S. at 556, 105 S.Ct. at 2228; Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1368 (5th Cir. July 1981); see also Mazer, 347 U.S. at 217, 74 S.Ct. at 470 (“Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea — not the idea itself.” (citation omitted)). Courts have struggled with this dichotomy in the context of computer programs, given the various types and functions of these programs. See, e.g., Whelan Assocs., Inc. v. Jaslow Dental" }, { "docid": "23132510", "title": "", "text": "selling [a patented] invention throughout the United States.” Id. Meanwhile, the public benefits both from the faster introduction of inventions, and the resulting increase in market competition. Legally, a patent amounts to a permissible monopoly over the protected work. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 135, 89 S.Ct. 1562, 1583, 23 L.Ed.2d 129 (1969). Patent laws “are in pari materia with the antitrust laws and modify them pro tanto (as far as the patent laws go).” Simpson v. Union Oil Co., 377 U.S. 13, 24, 84 S.Ct. 1051, 1058, 12 L.Ed.2d 98 (1964). Federal copyright law “secure[s] a fair return for an author’s creative labor” in the short run, while ultimately seeking “to stimulate artistic creativity for the general public good.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975) (internal quotations omitted). The Copyright Act grants to the copyright owner the exclusive right to distribute the protected work. 17 U.S.C. § 106. This right encompasses the right to “refrain from vending or licensing,” as the owner may “content [itself] with simply exercising the right to exclude others from using [its] property.” Data General, 36 F.3d at 1186 (quoting Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 547, 76 L.Ed. 1010 (1932)); see Stewart v. Abend, 495 U.S. 207, 228-29, 110 S.Ct. 1750, 1764, 109 L.Ed.2d 184 (1990)(“nothing in the copyright statutes would prevent an author from hoarding all of his works during the term of the copyright.”) Clearly the antitrust, copyright and patent laws both overlap and, in certain situations, seem to conflict. This is not a new revelation. We have previously noted the “obvious tension” between the patent and antitrust laws: “[o]ne body of law creates and protects monopoly power while the other seeks to proscribe it.” United States v. Westinghouse Electric Corp., 648 F.2d 642, 646 (9th Cir.1981) (citations omitted). Similarly, tension exists between the antitrust and copyright laws. See Data General, 36 F.3d at 1187. Two principles have emerged regarding the interplay between these laws: (1) neither patent" }, { "docid": "22247877", "title": "", "text": "performances, and that televised broadcasts of their performances made without their consent violate their rights of publicity in their performances. See, e.g., Rogers Complaint ¶ 15, 30, 40; Baltimore Orioles Answer ¶ 43; Players’ Summary Judgment Memorandum 14-19; Transcript of Summary Judgment Hearing 40; Appellant’s Brief 3. Because the exercise of the Clubs’ right to broadcast telecasts of the games infringes the Players’ rights of publicity in their performances, the Players’ rights of publicity are equivalent to at least one of the rights encompassed by copyright, viz., the right to perform an audiovisual work. Since the works in which the Players claim rights are fixed in tangible form and come within the subject matter of copyright, the Players’ rights of publicity in their performances are preempted. The Players argue that their rights of publicity in their performances are not equivalent to the rights contained in a copyright because rights of publicity and copyrights serve different interests. In their view, the purpose of federal copyright law is to secure a benefit to the public, but the purpose of state statutory or common law concerning rights of publicity is to protect individual pecuniary interests. We disagree. The purpose of federal copyright protection is to benefit the public by encouraging works in which it is interested. To induce individuals to undertake the personal sacrifices necessary to create such works, federal copyright law extends to the authors of such works a limited monopoly to reap the rewards of their endeavors. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 782, 78 L.Ed.2d 574 (1984); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975); Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 (1954); Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 546, 76 L.Ed. 1010 (1932). Contrary to the Players’ contention, the interest underlying the recognition of the right of publicity also is the promotion of performances that appeal to the public. The reason that state law protects" }, { "docid": "23633605", "title": "", "text": "is context specific, not dollar dominated. Although the Supreme Court has observed that the fair use doctrine — particularly the first statutory factor — is not rigidly circumscribed by the so-called “productive use requirement,” Sony Corp., 464 U.S. at 455 n. 40, 104 S.Ct. at 795 n. 40 (1984), an unproductive use “may be helpful in calibrating the balance.” Id. Again, Dr Freeman’s use of P-1 for the intrinsic purpose for which it was prepared moves the balance of the calibration on the first factor against appellee. 2. The Nature of the Work With respect to the second factor, the district court, again quoting Harper & Row, stated that “[t]he law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.” 471 U.S. at 563, 105 S.Ct. at 2232. From that, it found that because P-1 was a scientific work, this factor weighed heavily in appellee’s favor. 684 F.Supp. at 1262. Concededly, the scientific nature of P-1 tilts this factor toward appellee. Yet, the nature of the work is not the only matter considered. The Supreme Court instructs that “[tjhe rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors.” Harper & Row, 471 U.S. at 546, 105 S.Ct. at 2223; see also Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975). In Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 (1954) the Court explained that by establishing a right to the use of one’s expression— whether in the nature of fiction or fact— copyright provides the economic incentive to research and disseminate ideas. Encouraging authors to use their talents by holding out a promise of reward for their efforts is the surest way to advance the public welfare. Id. at 219, 74 S.Ct. at 471. In this case it is necessary to keep in mind the danger that allowing wholesale appropriation of scientific works presents. The personal gain sought by Dr. Weiss-mann may not be directly related to immediate" }, { "docid": "22247878", "title": "", "text": "purpose of state statutory or common law concerning rights of publicity is to protect individual pecuniary interests. We disagree. The purpose of federal copyright protection is to benefit the public by encouraging works in which it is interested. To induce individuals to undertake the personal sacrifices necessary to create such works, federal copyright law extends to the authors of such works a limited monopoly to reap the rewards of their endeavors. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 782, 78 L.Ed.2d 574 (1984); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975); Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 (1954); Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 546, 76 L.Ed. 1010 (1932). Contrary to the Players’ contention, the interest underlying the recognition of the right of publicity also is the promotion of performances that appeal to the public. The reason that state law protects individual pecuniary interests is to provide an incentive to performers to invest the time and resources required to develop such performances. In Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977), the prin cipal case on which the Players rely for their assertion that different interests underlie copyright and the right to publicity, the Supreme Court recognized that the interest behind federal copyright protection is the advancement of the public welfare through the encouragement of individual effort by personal gain, id. at 576, 97 S.Ct. at 2857, and that a state’s interest in affording a cause of action for violation of the right to publicity “is closely analogous to the goals of patent and copyright law.” Id. at 573, 97 S.Ct. at 2856; see also Felcher & Rubin, The Descendibility of the Right of Publicity: Is There Commercial Life After Death?, 89 Yale L.J. 1125, 1129-32 (1980); Nimmer, The Right of Publicity, 19 Law & Contemp.Probs. 203, 215-16 (1954); Quinn & Warren, Professional Team Sports New Legal Arena: Television" }, { "docid": "9407179", "title": "", "text": "of the Copyright Act, the court is directed to look to the “object and policy” of the copyright law. Copyright monopolies are not granted for the purpose of rewarding authors. Rather, Congress has granted copyright monopolies to serve the public welfare by encouraging authors (broadly defined) to generate new ideas and disclose them to the public, being free to do so in any uniquely expressed way they may choose. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 546, 105 S.Ct. 2218, 2223, 85 L.Ed.2d 588 (1985). As the Supreme Court has concluded, “encouragement of individual effort by personal gain is the best way to advance public welfare through talents of authors and inventors in ‘Science and useful Arts.’ ” Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 reh’g denied, 347 U.S. 949, 74 S.Ct. 637, 98 L.Ed. 1096 (1954). See also Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 432, 104 S.Ct. 774, 783, 78 L.Ed.2d 574 (1984) (“ ‘The immediate effect of our .copyright law is to secure a fair return for an “author’s” creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.’ ”) (quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2043, 45 L.Ed.2d 84 (1975)). In construing the relevant statutory mandates, the court must be faithful to the statutory language and mindful of both the ultimate goal of copyright law — the advancement of public welfare — and Congress’ chosen method of achieving this goal — private reward to the individual author. Courts should not draw the line between copyrightable and non-copyrightable elements of computer programs in such a way as to harm the public welfare, nor should courts ignore the accommodation struck by Congress in choosing to advance the public welfare by rewarding authors. These mandates leave courts with a delicate task: Drawing the line too liberally in favor of copyright protection would bestow strong monopolies over specific applications upon the first to write programs performing those applications and" }, { "docid": "22832895", "title": "", "text": "entire patent system”). (3) Copyright Law Copyright law provides further guidance. The Copyright Act expressly grants to a copyright owner the exclusive right to distribute the protected work by “transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 106. Consequently, “[t]he owner of the copyright, if [it] pleases, may refrain from vending or licensing and content [itself] with simply exercising the right to exclude others from using [its] property.” Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 547, 76 L.Ed. 1010 (1932). See also Stewart v. Abend, 495 U.S. 207, 229, 110 S.Ct. 1750, 1764, 109 L.Ed.2d 184 (1990). We may also venture to infer that, in passing the Copyright Act, Congress itself made an empirical assumption that allowing copyright holders to collect license fees and exclude others from using their works creates a sys tem of incentives that promotes consumer welfare in the long term by encouraging investment in the creation of desirable artistic and functional works of expression. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349, 111 S.Ct. 1282, 1290, 113 L.Ed.2d 358 (1991) (“The primary objective of a copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’ ”) (brackets in original) (quoting U.S. Const. art. I. § 8, cl. 8); Sony Corp., 464 U.S. at 429, 104 S.Ct. at 782 (discussing goals and incentives of copyright protection); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975) (“Tbe immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”). We cannot require antitrust defendants to prove and reprove the merits of this legislative assumption in every case where a refusal to license a copyrighted work comes under attack. Nevertheless, although “nothing in the copyright statutes would prevent an author from hoarding all of his works during the term of the copyright,” Stewart, 495 U.S." }, { "docid": "4983887", "title": "", "text": "Article 1, section 8, clause 8, Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d at 307; Berlin v. E. C. Publications, 329 F.2d at 544. In this respect, the fair use doctrine provides a means of balancing the exclusive rights of a copyright holder with the public interest in dissemination of information affecting these universal concerns. Meeropol v. Nizer, 560 F.2d at 1068; Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d at 94. courts in passing upon particular claims of infringement must occasionally subordinate the copyright holder’s interest in a maximum financial return to the greater public interest in the development of the arts, science, and industry In deciding the relationship of the copyright holder’s interest to the public interest, courts have sanctioned fair use ranging from a few quotations, Rosemont Enterprises, Inc. v. Random House, Inc., supra, to the photo duplication of entire essays and articles. Williams & Wilkins Co. v. United States, supra. In this evaluation, the primary object of the Copyrights Act — the public interest in the dissemination of information, Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 76 L.Ed. 1010 (1932), must also be balanced against the author’s motivation to create new works. Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 (1954); Twentieth Century Music Corp. v. Aiken, 422 U.S. at 156, 95 S.Ct. at 2043. The court in Williams & Wilkins Co. v. United States, supra, found that with rare exceptions, the authors of medical articles were not paid for their works and that these authors were not interested in a financial return from their writing efforts. Id. 487 F.2d at 1359. Further, the court noted that some of the medical journal authors found the photocopying to be an aid in the advancement of science and knowledge. Id. at 1359. Thus, an author’s motivation to create new works may even be enhanced by the photocopying of medical articles and essays. This is in sharp contrast to the situation here. The educational nature of the plaintiffs’ works contemplates a national distribution to" }, { "docid": "17658498", "title": "", "text": "me that this fact is of great importance: it means that, so long as the copyright system assures sufficient revenue to print and distribute scientific journals, the level of copyright revenue is not among the incentives that drive the authors to the creative acts that the copyright laws are intended to foster. As to this issue, the majority adopts the district court’s view that it is “irrelevant” because the authors have assigned the copyright to publishers who risk capital to achieve the wide dissemination of the articles that the authors want and need. 802 F.Supp. at 27. The district court greatly overstates the case in concluding that “[o]nee an author has assigned her copyright, her approval or disapproval of photocopying is of no further relevance.” Id. As a commercial proposition, that is unassailable. But equitable considerations under the copyright law justify an inquiry into the incentives for creating the work — here, the scientific journal articles. See Harper & Row, 471 U.S. at 560 n. 3, 105 S.Ct. at 2225 n. 3 (equitable rule of reason permits inquiry into whether “rigid application of the copyright statute ... would stifle the very creativity which that law is designed to foster.”). “‘The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.’” Fogerty v. Fantasy, Inc., — U.S. -, -, 114 S.Ct. 1023, 1029, 127 L.Ed.2d 455 (1994) (quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975)). To that end, we are reminded that: “The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’ To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.” Id. at -, 114 S.Ct. at 1030 (quoting Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349-50, 111 S.Ct. 1282, 1290," }, { "docid": "22832896", "title": "", "text": "Co., 499 U.S. 340, 349, 111 S.Ct. 1282, 1290, 113 L.Ed.2d 358 (1991) (“The primary objective of a copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’ ”) (brackets in original) (quoting U.S. Const. art. I. § 8, cl. 8); Sony Corp., 464 U.S. at 429, 104 S.Ct. at 782 (discussing goals and incentives of copyright protection); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975) (“Tbe immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”). We cannot require antitrust defendants to prove and reprove the merits of this legislative assumption in every case where a refusal to license a copyrighted work comes under attack. Nevertheless, although “nothing in the copyright statutes would prevent an author from hoarding all of his works during the term of the copyright,” Stewart, 495 U.S. at 228-29, 110 S.Ct. at 1764 (emphasis added), the Copyright Act does not explicitly purport to limit the scope of the Sherman Act. And, if the Copyright Act is silent on the subject generally, the silence is particularly acute in cases where a monopolist harms consumers in the monopolized market by refusing to license a copyrighted work to competitors. We acknowledge that Congress has not been entirely silent on the relationship between antitrust and intellectual property laws. Congress amended the patent laws in 1988 to provide that “[n]o patent owner otherwise entitled to relief for infringement ... of a patent shall be denied relief or deemed guilty of misuse or illegal extension of the patent right by reason of [the patent owner’s] refus[al] to license or use any rights to the patent.” 35 U.S.C. § 271(d) (1988). Section 271(d) clearly prevents an infringer from using a patent misuse defense when the patent owner has unilaterally refused a license, and may even herald the prohibition of all antitrust claims and counterclaims premised on a refusal to" }, { "docid": "22084381", "title": "", "text": "by defendants for financial gain, even when viewed most favorably as to defendants, as well as reasonable inferences drawn therefrom do not create a genuine issue of material fact warranting trial. See Augusta Iron & Steel Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856 (11th Cir.1988) (per curiam); Carlin Communication, 802 F.2d at 1356; Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir.1983). Therefore, the copyright and communications claims must be analyzed under the controlling substantive law in order to determine if the district court’s decision was correct as a matter of law. Everett, 833 F.2d at 1510; see Fed.R.Civ.P. 56(c). 1. Copyright Violations The Copyright Act of 1976 (Copyright Act), 17 U.S.C. § 101 et seq., is the congressional implementation of an affirmative constitutional duty under the copyright and patent clause “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const, art. I, § 8, cl. 8; Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1187 (5th Cir.1979); see Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 428-29, 104 S.Ct. 774, 782, 78 L.Ed.2d 574 (1984); Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 (1954); Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 36, 59 S.Ct. 397, 400, 83 L.Ed. 470 (1939). The Copyright Act provides a fair return to authors and inventors by protecting their works from exploitation by others. See Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 546, 105 S.Ct. 2218, 2223, 85 L.Ed.2d 588 (1985); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2043-44, 45 L.Ed.2d 84 (1975). The district court issued its final judgment and permanent injunction based on defendants’ willful, direct and contributory copyright infringements. Accordingly, we must examine the substantive law of direct and contributory copyright infringement in order to determine if defendants’ acts violated plaintiffs’ copyrighted CMS computer program, stored in the U-30 chip. a." }, { "docid": "22110345", "title": "", "text": "WALKER, Circuit Judge: In recent years, the growth of computer science has spawned a number of challenging legal questions, particularly in the field of copyright law. As scientific knowledge advances, courts endeavor to keep pace, and sometimes — as in the area of computer technology — they are required to venture into less than familiar waters. This is not a new development, though. “From its beginning, the law of copyright has developed in response to significant changes in technology.” Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 430, 104 S.Ct. 774, 782, 78 L.Ed.2d 574 (1984). Article I, section 8 of the Constitution authorizes Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Supreme Court has stated that “[t]he economic philosophy behind the clause ... is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare____” Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 (1954). The author’s benefit, however, is clearly a “secondary” consideration. See United States v. Paramount Pictures, Inc., 334 U.S. 131, 158, 68 S.Ct. 915, 929, 92 L.Ed. 1260 (1948). “[T]he ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975). Thus, the copyright law seeks to establish a delicate equilibrium. On the one hand, it affords protection to authors as an incentive to create, and, on the other, it must appropriately limit the extent of that protection so as to avoid the effects of monopolistic stagnation. In applying the federal act to new types of cases, courts must always keep this symmetry in mind. Id. Among other things, this case deals with the challenging question of whether and to what extent the “non-literal” aspects of a computer program, that is, those aspects that are not reduced to written code, are protected by copyright. While a few other" }, { "docid": "16219703", "title": "", "text": "the program. Atari made photocopies of the Copyright Office copy, deprocessed chips, and hand-copied the IONES object code from the deprocessed chip. Atari then entered this copied IONES object code into a computer which aided in understanding the ideas in the program. The district court determined that this intermediate copying infringed Nintendo’s copyright. The Copyright Act encourages authors to share their creative works with society. The Constitution sets forth the purpose of copyright protection as the promotion of “the Progress of Science”, not the rewarding of authors. U.S. Const, art. I, § 8, cl. 8; Feist, — U.S. at-, 111 S.Ct. at 1290; see also, Harper & Row, 471 U.S. at 546, 105 S.Ct. at 2223; Sony Corp., 464 U.S. at 429-30, 104 S.Ct. at 782-83; Twentieth Century Music v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975); Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 546, 76 L.Ed. 1010 (1932). The Copyright Act thus balances “the interests of authors ... in the control and exploitation of their writings ... on the one hand, and society’s competing interests in the free flow of ideas, [and] information ... on the other hand.” Sony Corp., 464 U.S. at 429-30, 104 S.Ct. at 782-83. Thus, while providing exclusive rights to expression, the Act “encourages others to build freely upon the ideas and information conveyed by a work.” Feist, — U.S. at-, 111 S.Ct. at 1290. The Act grants authors enumerated exclusive rights, see 17 U.S.C. § 106, subject to limitations, see 17 U.S.C. §§ 107-112. The author does not acquire exclusive rights to a literary work in its entirety. Under the Act, society is free to exploit facts, ideas, processes, or methods of operation in a copyrighted work. See, e.g., Feist, — U.S. at-, 111 S.Ct. at 1289-90. To protect processes or methods of operation, a creator must look to patent laws. See Bonito Boats v. Thunder Craft Boats, 489 U.S. 141, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989); Arrhythmia Research, 958 F.2d at 1053; see also The Law & Business of Computer Software," }, { "docid": "4888690", "title": "", "text": "economy generally encourages the division and specialization of labor. There is no reason why in this instance the law should discourage high schools, colleges, students and professors from hiring the labor of others to make their copies any more than there is a reason to discourage lawyers from hiring paralegals to make copies for clients and courts. The Court’s distinction in this ease based on the division of labor — -who does the copying — is short sighted and unsound economically. Our Court cites no authority for the proposition that the intervention of the copyshop changes the outcome of the case. The Court errs by focusing on the “use” of the materials made by the copyshop in making the copies rather than upon the real user of the materials — the students. Neither the District Court nor our Court provides a rationale as to why the eopyshops cannot “stand in the shoes” of their customers in making copies for noncommercial, educational purposes where the copying would be fair use if undertaken by the professor or the student personally. Rights of copyright owners are tempered by the rights of the public. The copyright owner has never been accorded complete control over all possible uses of a work. Generally, “[t]he monopoly privileges [of copyright] that Congress may authorize are neither unlimited nor' primarily designed to provide a special private benefit,” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 782, 78 L.Ed.2d 574 (1984), a statement the Court more fully explained as follows: The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.... When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of its basic purpose. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2043-44, 45" }, { "docid": "16219702", "title": "", "text": "program. Without any allegedly infringing program at all in 1988, Atari had no reason to fear a copyright infringement suit from Nintendo. Therefore, no controversy at all existed when Atari acquired the IONES program from the Copyright Office. Without an actual controversy, Atari’s acquisition of the IONES source code violated Copyright Office rules. Reproduction of an unauthorized copy from the Copyright Office violates 17 U.S.C. § 106(1). On this record, the district court did not err in determining that Nintendo is likely to show successfully that Atari infringed the IONES copyright by obtaining and copying the source code from the Copyright Office. Reverse Engineering Atari made copies of the IONES program in its attempts to “reverse engineer” Nintendo’s program. Atari made intermediate copies in two very different settings. Before obtaining the Copyright Office copy of IONES, Atari tried to understand the program. Atari stripped some IONES chips and copied portions of the IONES object code from the chips. After obtaining the copy of the code from the Copyright Office, Atari made other intermediate copies of the program. Atari made photocopies of the Copyright Office copy, deprocessed chips, and hand-copied the IONES object code from the deprocessed chip. Atari then entered this copied IONES object code into a computer which aided in understanding the ideas in the program. The district court determined that this intermediate copying infringed Nintendo’s copyright. The Copyright Act encourages authors to share their creative works with society. The Constitution sets forth the purpose of copyright protection as the promotion of “the Progress of Science”, not the rewarding of authors. U.S. Const, art. I, § 8, cl. 8; Feist, — U.S. at-, 111 S.Ct. at 1290; see also, Harper & Row, 471 U.S. at 546, 105 S.Ct. at 2223; Sony Corp., 464 U.S. at 429-30, 104 S.Ct. at 782-83; Twentieth Century Music v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975); Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 546, 76 L.Ed. 1010 (1932). The Copyright Act thus balances “the interests of authors ... in the control and exploitation" }, { "docid": "1367420", "title": "", "text": "to foster values enshrined in the First Amendment. See Harper & Row, 471 U.S. at 558, 105 S.Ct. 2218 (observing that “the Framers intended copyright itself to be the engine of free expression”). The Clause’s primary purpose is to provide authors with incentives to produce works that will benefit the public. See id. at 546, 105 S.Ct. 2218 (“The monopoly created by copyright thus rewards the individual author in order to benefit the public. ”) (internal quotation marks omitted) (emphasis supplied); Aiken, 422 U.S. at 156, 95 S.Ct. 2040 (“The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”) (emphasis supplied); Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 98 L.Ed. 630 (1954) (“The economic philosophy behind the clause empowering Congress to grant [ ] copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors ... in ‘... [the] useful Arts.’ ”); Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 76 L.Ed. 1010 (1932) (“The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.”). In Eldred, the connection between the First Amendment and copyright prompted the Court to reject the proposition that “copyrights [are] categorically immune from challenges under the First Amendment.” 537 U.S. at 221, 123 S.Ct. 769 (internal quotation marks omitted). However, under the facts of Eldred, copyright’s inherent free speech protections obviated any need for First Amendment review of the CTEA. The Court based this holding on three factors. First, the Court concluded that copyright law’s “built-in First Amendment accommodations” — the idea/expression dichotomy and fair use defense — adequately protected the First Amendment interests at stake. Id. at 219, 123 S.Ct. 769. Second, the Court reasoned that the plaintiffs had only a trivial interest in the copyrighted works because “[t]he First" }, { "docid": "1367404", "title": "", "text": "appropriate to bear in mind ... that in the enactment of a statute Congress is presumed to act with knowledge of controlling constitutional limitations or proscriptions and with an intent and purpose to avoid their contravention.” Wells, by Gillig, v. Att’y General of the United States, 201 F.2d 556, 560 (10th Cir.1953); see also INS v. Chadha, 462 U.S. 919, 944, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (“We begin ... with the presumption that the challenged statute is valid.”). III. DISCUSSION Plaintiffs claim that the CTEA’s 20-year extension of existing copyrights violates the Copyright Clause’s “limited Times” provision. In addition, they contend that the URAA’s removal of works from the public domain exceeds the authority granted to Congress under the Copyright Clause. Finally, plaintiffs maintain that § 514 of the URAA must be subject to First Amendment review because it has altered the traditional contours of copyright protection. Since familiarity with the foundations of copyright law is crucial to understanding the dispute, we begin with an outline of basic copyright principles. Under the Copyright Clause, Congress may “promote the Progress of Science and useful Arts, by securing for limited Times to Authors ... the exclusive Right to their Writings.” U.S. Const. art. I, § 8, cl. 8. The Supreme Court has explained that “[the Clause] is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). By encouraging creative expression through limited monopolies, the Copyright Clause “promotes] broad public availability of literature, music, and the other arts.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 45 L.Ed.2d 84 (1975). “[0]nce the ... copyright monopoly has expired, the public may use the ... work at will and without attribution.” Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 33-34, 123 S.Ct. 2041, 156 L.Ed.2d 18" }, { "docid": "8363067", "title": "", "text": "and inventors.” 347 U. S., at 219 (emphasis added). In Twentieth Century Music Corp. v. Aiken, 422 U. S. 151 (1975), the Court says that underlying copyright is the understanding that “[cjreative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” Id., at 156 (emphasis added). And in Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984), the Court, speaking of both copyrights and patents, points out that the “monopoly privileges that Congress may authorize are . .. [not] primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors ... by the provision of a special reward.” Id., at 429 (emphasis added); see also, e. g., Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 6 (1966) (The “constitutional command ... ‘[to] promote the Progress [of Science]’... is the standard expressed in the Constitution and it may not be ignored”); Fox Film Corp. v. Doyal, 286 U. S. 123, 127 (1932) (“The sole interest of the United States . . . lie[s] in the general benefits derived by the public from the labors of authors”). Congress has expressed similar views in congressional Reports on copyright legislation. Thus, for example, an 1892 House Report states: “The object to be attained and the reason for the constitutional grant of power are imbedded in the grant itself. They are ‘to promote the progress of science and the useful arts.’... [The Clause says] nothing ... about any desire or purpose to secure to the author or inventor his ‘natural right to his property.’” H. R. Rep. No. 1494, 52d Cong., 1st Sess., 2. Similarly, the congressional authors of the landmark 1909 Copyright Act wrote: “The Constitution ... provides that Congress shall have the power to grant [copyrights] . . . [n]ot primarily for the benefit of the author, . . . but because the" } ]

[ { "docid": "276459", "title": "", "text": "arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak.” CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995) (internal citations omitted). Some showing of irreparable harm, however, is a threshold requirement for a preliminary injunction. Id. (explaining that “[djespite the flexibility [in weighing the four factors in relation to each other], we require the moving party to demonstrate at least ‘some injury’ ”) (citing Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1210-11 (D.C.Cir.1989)); Miami Bldg. & Constr. Trades Council v. Sec’y of Defense, 143 F.Supp.2d 19, 27 (D.D.C.2001) (“For the Court to grant a preliminary injunction, plaintiffs must make some showing that irreparable harm will result absent immediate intervention by the Court.”). I. IRREPARABLE HARM “Irreparable harm” is an imminent injury that is both great and certain, and that legal remedies cannot repair. Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985)(eiting Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974); Connecticut v. Massachusetts, 282 U.S. 660, 674, 51 S.Ct. 286, 75 L.Ed. 602 (1931); Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 307 (D.D.C.1976)). The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. Va. Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C.Cir.1958); Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 367 (D.C.Cir.1999) (holding that eliminating flight attendants’ per diem pay and hotel allowances was not an irreparable injury because assuming the attendants could prevail, the change could be remedied with money damages); Sampson, 415 U.S. at 90, 94 S.Ct. 937 (explaining that “the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury”). In addition to demonstrating a substantial injury, a movant for a preliminary" } ]

[ { "docid": "10672137", "title": "", "text": "is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 374. Before the Supreme Court’s decision in Winter, courts weighed the preliminary injunction factors on a sliding scale, allowing a weak showing on one factor to be overcome by a strong showing on another. See Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C.Cir. 1999). This Circuit, however, has suggested, without deciding, that Winter should be read to abandon the sliding-scale analysis in favor of a “more demanding burden” requiring Plaintiffs to independently demonstrate both a likelihood of success on the merits and irreparable harm. See Sherley v. Sebelius, 644 F.3d 388, 392 (D.C.Cir. 2011); Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C.Cir.2009). Whether sliding-scale analysis still exists or not, courts in our Circuit have held that “if a party makes no showing of irreparable injury, the court may deny the motion for injunctive relief without considering the other factors.” CityFed Financial Corp. v. OTS, 58 F.3d 738, 747 (D.C.Cir. 1995), cited in Dodd v. Fleming, 223 F.Supp.2d 15, 20 (D.D.C.2002); see also Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (per curiam) (‘We believe that analysis of the [irreparable harm] factor disposes of these motions and, therefore, address only whether the petitioners have demonstrated that in the absence of a stay, they will suffer irreparable harm”). III. Analysis Given that Plaintiffs must demonstrate irreparable harm to prevail here, the Court starts with that analysis. “The irreparable injury requirement erects a very high bar for a movant.” Coalition for Common Sense in Gov’t Procurement v. United States, 576 F.Supp.2d 162, 168 (D.D.C.2008) (citing Varicon Int’l v. OPM, 934 F.Supp. 440, 447 (D.D.C.1996)). The “alleged injury must be certain, great, actual, and imminent.” Hi-Tech Pharmacal Co. v. U.S. Food and Drug Administration, 587 F.Supp.2d 1, 11 (D.D.C.2008) (citing Wisconsin Gas, 758 F.2d at 674). While the deprivation of a constitutional" }, { "docid": "11207758", "title": "", "text": "v. Venneri, 2005 WL 1119797, at *3 (D.D.C. May 11, 2005) (denying the plaintiffs motion for a preliminary injunction because the “plaintiff has not submitted any competent evidence into the record (i.e., affidavits, exhibits) that would permit the Court to assess whether she, in fact, faces irreparable harm”). The law in this Circuit is clear that the alleged irreparable injury “must be both certain and great; it must be actual and not theoretical.” Wis. Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C.Cir.1985) (per curiam). The plaintiff must show more than a possibility of injury; he must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 129 S.Ct. at 375 (internal citations omitted) (emphasis in original). Given the speculative nature of the plaintiffs claims of irreparable injury, the court cannot conclude that he is likely to suffer actual and imminent harm. Id.; Wis. Gas Co., 758 F.2d at 674. The plaintiffs conclusory allegations that the newspaper’s international contacts will make it easier for it to transfer assets outside of the United States are insufficient to demonstrate the likelihood of irreparable injury. Winter, 129 S.Ct. at 375-76 (rejecting a standard that would require a plaintiff to demonstrate only a “possibility” of irreparable injury). The burden of proof rests squarely on the plaintiffs shoulders and he has failed to carry that burden. See Mazurek, 520 U.S. at 972, 117 S.Ct. 1865; Cobell 391 F.3d at 258. Because the plaintiff has failed to demonstrate a likelihood of success on the merits and irreparable injury, the court need not reach the other factors relevant to the issue of injunctive relief. See CityFed Fin. Corp., 58 F.3d at 747. Accordingly, the court denies the plaintiffs motion for a preliminary injunction. IV. CONCLUSION For the foregoing reasons, the court denies the plaintiffs motion for a preliminary injunction. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 16th day of February, 2010. . The plaintiff alleges that, in the spring of 2009, Jenkins repeatedly asked the plaintiff to sign a form fraudulently asserting that Jenkins’s son" }, { "docid": "19892617", "title": "", "text": "it is threatened with irreparable harm because Opinion No. 234 contains no commitment to make refunds should the order be set aside on appeal, and because without such a commitment the parties collecting assessments pursuant to the order may be able to claim later that refunds would be inequitable because of their reliance on the overturned opinion. Despite FERC’s unquestioned power to exercise whatever authority it has to order refunds later whether or not it expresses that intention now, see United Gas Improvement Co. v. Callery Properties, 382 U.S. 223, 229, 86 S.Ct. 360, 364, 15 L.Ed.2d 284 (1965); despite this court’s unquestioned power to direct FERC’s exercise of such authority in connection with our disposition of the appeal, see, e.g., Tennessee Valley Municipal Gas Association v. FPC, 470 F.2d 446, 453 (D.C.Cir.1972); and despite the fact that required refund is the usual practice, see, e.g., Interstate Natural Gas Association v. FERC, 756 F.2d 166, 168 (D.C.Cir.1985); Reynolds claims that irreparable harm will result because “the passage of time without a refund obligation ... may eventually render more difficult the imposition of a refund obligation later.” Reply of Petitioner at 11-12, relying upon Texas Eastern Transmission Corp., 55 F.P.C. 2091, 2094 (1976), cited in American Public Gas Association v. FPC, 543 F.2d 356, 358 (D.C.Cir.1976), in which FERC denied refund because of reliance upon its overturned decision. It suffices to say that the phrase “may eventually render more difficult the imposition of a refund obligation” does not remotely mean “will be likely to make refund impossible.” On March 29, 1985, about five months before the Emergency Petition was filed, we issued an opinion “for the guidance of the bar because many essentially frivolous stay applications are being filed.” “Counsel,” we said, “know or may easily learn the requirements for a stay. Applications that do not even arguably meet those requirements, as the present ones do not, should not be filed.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 672 (D.C.Cir.1985). We emphasized the stringency of the requirement that irreparable injury be “likely” to occur, id. at 674 (citing Washington Metropolitan" }, { "docid": "3307677", "title": "", "text": "as to redressability, and significant problems confront his claims on the merits as they currently rest. Taken together, the Court must conclude on the present record that Newdow has not shown a substantial likelihood of success on his constitutional and statutory challenge to clergy-led inaugural prayer. III. Balance of Harms On the basis of that same record, Newdow likewise has not demonstrated that the balance of harms here strongly favors the injunctive relief he seeks. Certainly his showing is not sufficient to overcome the marginal showing of a likelihood of success on the merits of his claims. The threat of harm to his rights absent the requested injunction is generalized rather than specific, there is at least some risk of harm to others from entry of an injunction, and in the present circumstances the public interest simply does not favor the extraordinary relief that Newdow seeks. A. Threat of Harm to Newdow Absent an Injunction The lynchpin of a request for preliminary injunctive relief is a showing of irreparable injury to the movant in the absence of the requested relief. See Sociedad Anonima, 193 F.Supp.2d at 13-14. The harm must be concrete and immediate to warrant extraordinary injunctive relief, and vague or speculative injury will not suffice. See Wisconsin Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C.Cir.1985) (“the injury must be both certain and great; it must be actual and not theoretical”). In short, the threatened injury must be of such imminence that there is a clear and present need for equi table relief to prevent irreparable harm, because injunctions are not intended “to prevent injuries neither extant nor presently threatened, but only merely ‘feared.’ ” Comm. in Solidarity v. Sessions, 929 F.2d 742, 745-46 (D.C.Cir.1991) (citations omitted). Newdow alleges an injury to Ms fundamental constitutional rights, which generally is considered irreparable harm warranting injunctive relief. However, the impact of any prayer at the 2005 Inauguration on his constitutional rights is not direct — he is not required or forbidden to do anything. He need not attend the Inauguration in person or through television, radio or" }, { "docid": "21985031", "title": "", "text": "297 (D.C.Cir.2006). “First, the injury ‘must be both certain and great; it must be actual and not theoretical.’ ” Id. (quoting Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (per curiam)). To meet this standard, the injury must be “of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Id. (emphasis in original and citation omitted). In addition, “the injury must be beyond remediation.” Chaplaincy, 454 F.3d at 297. As the Circuit has explained: The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation weighs heavily against a claim of irreparable harm. Id. (quoting Wisc. Gas Co., 758 F.2d at 674). The plaintiffs claim that absent an injunction, they will suffer irreparable injury in the form of economic harm, loss of customer goodwill and loyalty, and deprivation of their due process rights. Pis.’ Mem. at 19-27. For the reasons that follow, none of these purported harms pass the high bar for irreparable injury. 1. Economic Harm and Lost Customers “The loss of business opportunities, market share, and customer goodwill are typically considered to be economic harms.” Air Transp. Ass’n of America, Inc. v. Exportr-Imporb Bank of the U.S., 840 F.Supp.2d 327, 335, 2012 WL 119557, at *6 (D.D.C.2012). And “the general rule” in this Circuit is “that economic harm does not constitute irreparable injury.” Davis, 571 F.3d at 1295; see also Wisc. Gas, 758 F.2d at 674 (“It is ... well settled that economic loss does not, in and of itself, constitute irreparable harm.”). Courts in this Circuit have, however, recognized that economic harm can constitute irreparable injury in at least two circumstances. First, where “monetary loss ... threatens the very existence of the movant’s business,” it may qualify as irreparable injury. Wisc. Gas, 758 F.2d at 674. Second, where the claimed economic loss is unrecoverable (e.g., when" }, { "docid": "20070877", "title": "", "text": "of the lack of a stay would be unrecoverable. See, e.g., Wis. Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C.Cir.1985) (“The key in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation weighs heavily against a claim of irreparable harm.”) (citing Va. Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C.Cir.1958)). The judges of this Court have concluded that insolvency to pay a damage award may constitute irreparable harm even though economic harm is generally not considered to qualify. Carabillo v. ULLICO Inc. Pension Plan and Trust, 355 F.Supp.2d 49, 55 (D.D.C.2004) (“economic loss may constitute irreparable harm where defendant would become insolvent or otherwise judgment-proof prior to the conclusion of litigation thus making the plaintiffs alleged damages unrecoverable”); Foltz v. U.S. News and World Report, Inc., 613 F.Supp. 634, 643 (D.D.C.1985) (concluding that the unavailability of assets to pay a damage award would irreparably injure the plaintiffs). Thus, in order for Friendship Edison to win its motion for a stay, it must show strong likelihood of success on the merits, unrecoverable economic harm, and that the public interest in the ultimate resolution of the controversy favors the stay. Finally, I have to balance the harm the plaintiff claims against the harm the defendant will suffer if the relief I awarded is postponed until the appeal is resolved. I must also consider where the public interest lies. III. Analysis A. Likelihood of success on the merits Plaintiff insists that it has a likelihood of success on the merits. It bases its argument on the fact that the amount of compensatory education that I awarded Nesbitt in the final judgment is the same amount as was awarded by the hearing officer, an amount which I had previously rejected. While Nesbitt III noted that the evidence produced by the defendant’s expert at the evidentiary hearing was" }, { "docid": "19892618", "title": "", "text": "eventually render more difficult the imposition of a refund obligation later.” Reply of Petitioner at 11-12, relying upon Texas Eastern Transmission Corp., 55 F.P.C. 2091, 2094 (1976), cited in American Public Gas Association v. FPC, 543 F.2d 356, 358 (D.C.Cir.1976), in which FERC denied refund because of reliance upon its overturned decision. It suffices to say that the phrase “may eventually render more difficult the imposition of a refund obligation” does not remotely mean “will be likely to make refund impossible.” On March 29, 1985, about five months before the Emergency Petition was filed, we issued an opinion “for the guidance of the bar because many essentially frivolous stay applications are being filed.” “Counsel,” we said, “know or may easily learn the requirements for a stay. Applications that do not even arguably meet those requirements, as the present ones do not, should not be filed.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 672 (D.C.Cir.1985). We emphasized the stringency of the requirement that irreparable injury be “likely” to occur, id. at 674 (citing Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 n. 3 (D.C.Cir.1977)), elaborating that “[b]are allegations of what is likely to occur are of no value since the court must decide whether the harm will in fact occur,” 758 F.2d at 674. The allegations of irreparable harm in this case are no more substantial than those that “wasted the time and resources of this court” in Wisconsin Gas. Id. at 672. The mere possibility that after this litigation is concluded, and assuming petitioners prevail, the court might not decree refund, and the Commission might then also refuse to provide it because of reliance on its overturned decision, is in no way enough to satisfy our clear and oft-repeated standard. It must be acknowledged, however, that a prior decision of this court — albeit much earlier than the clear pronouncements of Wisconsin Gas and GTE, and without discussion of the requirement of showing more than a mere possibility of irreparable injury — allowed mandamus relief for the very reason here requested. American Public Gas" }, { "docid": "2826968", "title": "", "text": "very high and the showing of irreparable barm to the movant very low, the movant must demonstrate a much greater likelihood of success. It is in this sense that all four factors must be balanced against each other. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C.Cir.2009) (citations and internal quotation marks omitted). However, “a movant must demonstrate at least some injury for a preliminary injunction to issue, for the basis of injunctive relief in the federal courts has always been irreparable harm.” Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (internal citations and quotation marks omitted). “A movant’s failure to show any irreparable harm is therefore grounds for refusing to issue a preliminary injunction, even if the other three factors entering the calculus merit such relief.” Id. III. LEGAL ANALYSIS As explained in the Court’s July 29, 2014 order denying ConverDyn’s motion, the Court finds that ConverDyn has failed to demonstrate irreparable harm, as it must for the issuance of a preliminary injunction. See id. The Court, therefore, begins its discussion with this factor. A. Irreparable Harm In this Circuit, a litigant seeking a preliminary injunction must satisfy “a high standard” for irreparable injury. Id. The asserted injury “must be both certain and great; it must be actual and not theoretical,” and the movant must show that “[t]he injury complained of [is] of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (alterations in original) (citations and quotation marks omitted). A party seeking a preliminary injunction “must show that the alleged harm will directly result from the action which the movant seeks to enjoin.” Id. Additionally, the injury “must be beyond remediation,” Chaplaincy of Full Gospel Churches, 454 F.3d at 297, and therefore, in general, “economic loss does not, in and of itself, constitute irreparable harm,” Wis. Gas. Co., 758 F.2d at 674. “[M]onetary loss may constitute irreparable harm only where the loss threatens the very existence of the movant’s business.” Id. And while “the mere fact that" }, { "docid": "11207757", "title": "", "text": "the movant to justify “by a clear showing” his request for injunctive relief). Nor has the plaintiff has offered any evidence of irreparable harm. Although the plaintiff makes a number of generalized allegations about the financial state of the Washington Times, Compl. ¶¶ 73-81, he fails to support a single one of these allegations with a shred of evidence. For instance, the plaintiff claims that [b]ased on The Washington Times’ economic condition, the departure of many of its key executives, the non-payment of its debts, the reductions in paid subscriptions and workforce, and its apparent insolvent state, the very internation al nature of the Unification Church, and the South Korean residency of many of the newspaper’s principals, it appears likely that The Washington Times could close suddenly and easily move its assets outside the United States or otherwise hide or dissipate them. Id. ¶ 80. The plaintiff, however, fails to offer any evidence that the Washington Times has moved or intends to move any of its assets. See generally Compl.; Pl.’s Mot.; see also Barton v. Venneri, 2005 WL 1119797, at *3 (D.D.C. May 11, 2005) (denying the plaintiffs motion for a preliminary injunction because the “plaintiff has not submitted any competent evidence into the record (i.e., affidavits, exhibits) that would permit the Court to assess whether she, in fact, faces irreparable harm”). The law in this Circuit is clear that the alleged irreparable injury “must be both certain and great; it must be actual and not theoretical.” Wis. Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C.Cir.1985) (per curiam). The plaintiff must show more than a possibility of injury; he must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 129 S.Ct. at 375 (internal citations omitted) (emphasis in original). Given the speculative nature of the plaintiffs claims of irreparable injury, the court cannot conclude that he is likely to suffer actual and imminent harm. Id.; Wis. Gas Co., 758 F.2d at 674. The plaintiffs conclusory allegations that the newspaper’s international contacts will make it easier for it to transfer assets outside" }, { "docid": "21985030", "title": "", "text": "would “encourage delay and thereby potentially increase the public’s exposure to dangerous conditions,” but also ensures that the government does not deprive “due process to citizens by arbitrarily invoking emergency procedures.” Catanzaro, 188 F.3d at 63. Here, it has already been determined that the DEA’s imminent danger finding was not arbitrary and capricious for the purposes of APA review. That rationale applies with equal force to the plaintiffs’ procedural due process claim, and the claim is therefore not likely to succeed on the merits. In sum, the plaintiffs have failed to show a likelihood of success on the merits for any of their claims. B. Irreparable Injury Having failed to show a likelihood of success on the merits, the plaintiffs must, under the sliding scale analysis, make an exceedingly strong showing of irreparable harm in order to obtain a pre liminary injunction. See Davis, 571 F.3d at 1291-92. In fact, the Circuit “has set a high standard for irreparable injury” whenever injunctive relief is sought. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.Cir.2006). “First, the injury ‘must be both certain and great; it must be actual and not theoretical.’ ” Id. (quoting Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (per curiam)). To meet this standard, the injury must be “of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Id. (emphasis in original and citation omitted). In addition, “the injury must be beyond remediation.” Chaplaincy, 454 F.3d at 297. As the Circuit has explained: The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation weighs heavily against a claim of irreparable harm. Id. (quoting Wisc. Gas Co., 758 F.2d at 674). The plaintiffs claim that absent an injunction, they will suffer irreparable injury in the form of economic harm, loss of customer goodwill" }, { "docid": "20070876", "title": "", "text": "v. Int’l Bhd. of Teamsters, 166 F.3d 356, 361 (D.C.Cir.1999)). A strong argument in favor of one factor may excuse a relatively weaker showing on another; however, in framing the sliding scale, the court of appeals has stated: “Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal? Without such substantial indication of probable success [on the merits], there would be no justification for the court’s intrusion into the ordinary processes of administration and judicial review.” Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977); see Davis, 571 F.3d at 1292 (“But Holiday Tours did not eliminate the other factors. The court simply acknowledged that a lessor likelihood of success might suffice if each of the other three factors clearly favors granting the injunction.”). In addition, in analyzing when a harm is irreparable in the context of economic harms, the movant must show that the harm would threaten the existence of its business or that the moneys lost as a result of the lack of a stay would be unrecoverable. See, e.g., Wis. Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C.Cir.1985) (“The key in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation weighs heavily against a claim of irreparable harm.”) (citing Va. Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C.Cir.1958)). The judges of this Court have concluded that insolvency to pay a damage award may constitute irreparable harm even though economic harm is generally not considered to qualify. Carabillo v. ULLICO Inc. Pension Plan and Trust, 355 F.Supp.2d 49, 55 (D.D.C.2004) (“economic loss may constitute irreparable harm where defendant would become insolvent or otherwise judgment-proof prior to the conclusion of litigation thus making the plaintiffs alleged damages unrecoverable”); Foltz v. U.S. News and World Report, Inc., 613 F.Supp." }, { "docid": "2820660", "title": "", "text": "sought should be denied because the plaintiffs have failed to show irreparable harm or that “the balance of harms/public interest” favor imposition of the injunctive relief requested. Defs.’ Supp. Resp. to Questioning at Oral Argument at 2, ECF No. 32. As discussed in more detail below, the plaintiffs have failed to demonstrate that (1) they are likely to suffer irreparable harm absent the requested injunctive relief; (2) a remedy in equity is warranted upon consideration of the balance of hardships to the plaintiffs and other interested parties; and (3) the requested relief is in the public interest. These considerations are addressed seriatim below. A. Irreparable Harm The D.C. Circuit “has set a high standard for irreparable injury” to warrant preliminary injunctions. Mexichem Specialty Resins, Inc. v. E.P.A., 787 F.3d 544, 555 (D.C.Cir.2015) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.Cir.2006)). In order to be considered “irreparable,” the injury “must be ‘both certain and great,’ ‘actual and not theoretical,’ ‘beyond remediation,’ and ‘of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.’ ” Id. (quoting Chaplaincy of Full Gospel Churches, 454 F.3d at 297) (emphasis in original). Where the injuries alleged are purely economic, as in the instant case, the injuries are irreparable only if “no ‘adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation.” Id. (quoting Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985)). At the outset, the Court agrees with the defendants that the timing of the plaintiffs’ lawsuit undermines their argument that they are suffering irreparable harm. Hrg. Tr. at 24:13-25:4. The D.C. Circuit has found that a delay of even forty-four days before bringing action for injunctive relief was “inexcusable,” and “bolstered the conclusion that an injunction should not issue,” particularly where the party seeking an injunction had knowledge of the pending nature of the alleged irreparable harm. See Fund for Animals v. Frizzell, 530 F.2d 982, 987 (D.C.Cir. 1975); see also Newdow v. Bush, 355 F.Supp.2d 265, 292 (D.D.C.2005) (“An unexcused" }, { "docid": "23652181", "title": "", "text": "irreparable injury.”). As explained in the preceding sections, Dr. Schrier has failed to demonstrate the requisite likelihood of success on his free speech and academic freedom claims. As a result, he is not entitled to a presumption of irreparable injury. Dr. Schrier further claims he suffered irreparable injury though the loss of academic prestige, standing, or reputation. In addressing this contention, the magistrate judge reasoned that [t]he testimony and evidence in support [of] this claim ... is that Dr. Schrier’s reputation was damaged, not because he was removed as chairman, but because no specific reason for the removal of his chairmanship was given. As a result, the public was left to assume the worst.... The notion of irreparable injury does not embrace this type of harm, however.... Any loss of prestige, standing, or reputation that Dr. Schrier may have suffered prior to filing this action can be remedied through money damages and does not justify a preliminary injunction. Moreover, Dr. Schrier’s claim for lost opportunities is speculative; he provided no evidence of actual lost opportunities. Speculation or unsubstantiated fear of what may happen in the future cannot provide the basis for a preliminary injunction. Aplt.App. at 201-02 (internal citations and quotations omitted). In other words, because the types of injuries alleged by Dr. Schrier occurred in the past or were speculative, and could be remedied through money damages should he ultimately pre vail on his claims, a preliminary injunction was unwarranted. See, e.g., Mountain Med. Equip., Inc. v. Healthdyne, Inc., 582 F.Supp. 846, 848 (D.Colo.1984). “To constitute irreparable harm, an injury must be certain, great, actual and not theoretical.” Heideman, 348 F.3d at 1189 (internal citations omitted). “[Mjerely serious or substantial” harm is not irreparable harm. Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir.2001) (quotation omitted). “[T]he party seeking injunctive relief must show that the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Heideman, 348 F.3d at 1189 (quoting Wise. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985)) (brackets, citations," }, { "docid": "13496911", "title": "", "text": "contends that, if the Court does not grant the injunction she seeks, she will suffer irreparable harm, including significant harm to her professional reputation, an effective end to her law teaching career, a difficult transition period due to her age and health, and a loss of income. See Pl.’s TRO Mot. at 12-14; PL’s PI Mot., Ex. 9. Defendants counter that plaintiffs speculative and eonclusory allegations of irreparable harm not only lack factual support, but are economic in nature and thus insufficient to merit injunctive relief. See Def.’s Opp’n at 15-19. In our circuit, the standard for establishing irreparable harm sufficient to warrant a preliminary injunction is quite high. Chaplaincy, 454 F.3d at 297. For instance, not only must the impending harm “be both certain and great,” but it “must [also] be actual and not theoretical.” Id. (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (per curiam)). The plaintiff, in this case, thus must show that her injury is of such “imminence” that there is a “clear and present” need for equitable relief to prevent irreparable harm. Id. (citations omitted); see also Connecticut v. Massachusetts, 282 U.S. 660, 674, 51 S.Ct. 286, 75 L.Ed. 602 (1931) (injunctive relief “will not be granted against something merely feared as liable to occur at some indefinite time in the future”). In addition, it is well-settled that “recoverable economic losses are not considered irreparable.” Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1507 (D.C.Cir.1995); see also Wis. Gas Co., 758 F.2d at 674 (“economic loss does not, in and of itself, constitute irreparable harm”). Indeed, our circuit has explicitly stated that “[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough,” and that the availability of sufficient compensation or other remedial relief in the normal course of litigation “weighs heavily against a claim of irreparable harm.” Wis. Gas Co., 758 F.2d at 674 (quoting Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958)). Last, ingrained in each of these principles is the added requirement that “the movant" }, { "docid": "17692536", "title": "", "text": "evaluated could eliminate the benefits — including early detection of problems — of low-power testing under 10 C.F.R. § 50.57(c) (1984), which permits low-power operation prior to the resolution of full-power issues such as emergency evacuation planning. II. Irreparable Injury Petitioners assert that three types of injury may follow from immediate low-power testing. First, petitioners note that low-power testing will result in irradiation of the reactor, an irreversible change from the status quo. Petitioners, however, only vaguely sketch the contours of this asserted harm. Workers will be exposed to some level of radiation during and following the test. Petitioners’ Reply Memorandum in Support of Emergency Stay Motion at 37. There also is inevitably some extremely small possibility that radiation could be released into the surrounding environment as a consequence of the test. Id. While it is true that these potential harms, should they occur, cannot be repaired by mere money, their likelihood of occurrence is too small to meet an irreparable harm standard. A party moving for a stay is required to demonstrate that the injury claimed is “both certain and great.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985). Petitioners’ second claim of irreparable harm is the possibility that their claims will be mooted if a stay is not granted. Petitioners do not claim that the propriety of the granting of a lower-power license could not be reviewed even after low-power testing is complete, see Petitioners’ Reply Memorandum in Support of Emergency Stay Motion at 39, as well they should not. See San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1317 (D.C.Cir.1984) (holding that claims related to low-power hearing do not become moot upon completion of low-power testing), vacated in part and rehearing en banc granted on other grounds, 760 F.2d 1320 (D.C.Cir.1985). Rather, petitioners contend that their claims will become effectively moot if low-power testing is permitted because no effective relief could be granted. See Memorandum Supporting Emergency Stay Motion at 41-42. This argument, however, merely recasts the irreparable injury contention discussed above. No doubt low-power testing represents an irreversible change from the" }, { "docid": "10672138", "title": "", "text": "the court may deny the motion for injunctive relief without considering the other factors.” CityFed Financial Corp. v. OTS, 58 F.3d 738, 747 (D.C.Cir. 1995), cited in Dodd v. Fleming, 223 F.Supp.2d 15, 20 (D.D.C.2002); see also Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (per curiam) (‘We believe that analysis of the [irreparable harm] factor disposes of these motions and, therefore, address only whether the petitioners have demonstrated that in the absence of a stay, they will suffer irreparable harm”). III. Analysis Given that Plaintiffs must demonstrate irreparable harm to prevail here, the Court starts with that analysis. “The irreparable injury requirement erects a very high bar for a movant.” Coalition for Common Sense in Gov’t Procurement v. United States, 576 F.Supp.2d 162, 168 (D.D.C.2008) (citing Varicon Int’l v. OPM, 934 F.Supp. 440, 447 (D.D.C.1996)). The “alleged injury must be certain, great, actual, and imminent.” Hi-Tech Pharmacal Co. v. U.S. Food and Drug Administration, 587 F.Supp.2d 1, 11 (D.D.C.2008) (citing Wisconsin Gas, 758 F.2d at 674). While the deprivation of a constitutional right, “ ‘for even minimal periods of time, unquestionably constitutes irreparable injury,’ ” Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C.Cir.2009) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)), Plaintiffs nevertheless must show such that some action or event giving rise to such a violation is likely to occur. In order to obtain a preliminary injunction, Plaintiffs must “provide proof that the harm has occurred in the past and is likely to occur again, or proof indicating that the harm is certain to occur in the near future.” Wisconsin Gas, 758 F.2d at 674 (emphasis added). Injury that is hypothetical or speculative does not rise to the level of irreparable harm. Id. (injury “must be actual and not theoretical”). Courts will not grant injunctive relief “against something merely feared as liable to occur at some indefinite time.” Id. The factual and legal questions in this case arise at the intersection of Plaintiffs’ constitutional rights and the National Park Service’s binding regulations. On the one hand, the" }, { "docid": "17851240", "title": "", "text": "four factors for the Secretary to consider in “selecting which special measure or measures to take under this subsection,” id. § 5318A(a)(4), (a)(4)(B), and three factors for the Secretary to consider in “making a finding that reasonable grounds exist for concluding that a ... financial institution[ ] operating outside of the United States ... is of primary money laundering concern,” id. § 5318A(c)(l), (c)(2)(B). The Final Rule explicitly lists and addresses the first set of factors, see 80 Fed.Reg. 45057, 45060-61, and it addresses the second set of factors throughout the rule, see id. at 45058-61. The Court is satisfied that the agency’s reasoning with respect to these factors is grounded in the record, taken as a whole, and otherwise complies with the APA. B. Irreparable Harm An injunction is appropriate only if the applicant has demonstrated irreparable harm and the inadequacy of legal remedies. Sierra Club v. U.S. Army Corps of Eng’rs, 990 F.Supp.2d 9, 38 (D.D.C.2013). “The party seeking injunctive relief must demonstrate that the claimed injury is ‘both certain and great.’ ” Id. at 38-39 (quoting Wis. Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C.Cir.1985)). Moreover, “the party-seeking injunctive relief must show that ‘[t]he injury complained of [is] of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.’” Wisconsin Gas Co., 758 F.2d at 674 (quoting Ashland Oil, Inc. v. FTC, 409 F.Supp, 297, 307 (D.D.C.1976), aff'd, 548 F.2d 977 (D.C.Cir.1976)). A plaintiff must present the Court with enough'. evidence to “substantiate]” its claim of irreparable, injury. Id. at 676. FBME believes it “beyond serious dispute” that -it will suffer irreparable harm in the absence of a preliminary injunction.- Mem. Supp. Mot. Prelim J. at 41. The Bank claims that, without preliminary relief, it will “cease being able to function as a commercial bank.” Id. It offers two main arguments in support of this assertion. First, the Bank states that it depends on U.S. dollars to conduct business and indicates that'it will be cut off from any transaction involving U.S. dollars once the Final Rule" }, { "docid": "13496910", "title": "", "text": "(internal quotation marks and citations omitted) (emphasis in original). A mere possibility of irreparable harm is not enough, see Winter, 555 U.S. at 22, 129 S.Ct. 365, and a court may deny a motion for preliminary relief without considering any other factors when irreparable harm is not established. See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.Cir.2006) (“[a] movant’s failure to show any irreparable harm is therefore grounds for refusing to issue a preliminary injunction, even if the other three factors entering the calculus merit such relief’); see also CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995) (“[because CityFed has made no showing of irreparable injury here, that alone is sufficient for us to conclude that the district court did not abuse its discretion by rejecting City-Fed’s request [for a preliminary injunction]”); Cornish v. Dudas, 540 F.Supp.2d 61, 64 (D.D.C.2008)(“[w]here a party has made no showing of irreparable injury, injunctive relief may be unavailable regardless of the showings on the other factors”). 2. Irreparable Harm Plaintiff contends that, if the Court does not grant the injunction she seeks, she will suffer irreparable harm, including significant harm to her professional reputation, an effective end to her law teaching career, a difficult transition period due to her age and health, and a loss of income. See Pl.’s TRO Mot. at 12-14; PL’s PI Mot., Ex. 9. Defendants counter that plaintiffs speculative and eonclusory allegations of irreparable harm not only lack factual support, but are economic in nature and thus insufficient to merit injunctive relief. See Def.’s Opp’n at 15-19. In our circuit, the standard for establishing irreparable harm sufficient to warrant a preliminary injunction is quite high. Chaplaincy, 454 F.3d at 297. For instance, not only must the impending harm “be both certain and great,” but it “must [also] be actual and not theoretical.” Id. (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (per curiam)). The plaintiff, in this case, thus must show that her injury is of such “imminence” that there is a “clear and present” need for equitable" }, { "docid": "4865588", "title": "", "text": "249 (2008)) (some alterations in original). Because it is “an extraordinary remedy,” a preliminary injunction “should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C.Cir.2004) (citing Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997)). The District of Columbia Circuit has applied a “sliding scale” approach in evaluating the preliminary injunction factors. Sherley, 644 F.3d at 392. Under this analysis, [i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor. For example, if the movant makes a very strong showing of irreparable harm and there is no substantial harm to the non-movant, then a correspondingly lower standard can be applied for likelihood of success.... Alternatively, if substantial harm to the nonmovant is very high and the showing of irreparable harm to the movant very low, the movant must demonstrate a much greater likelihood of success. It is in this sense that all four factors must be balanced against each other. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C.Cir.2009) (internal quotation marks and citations omitted). III. ANALYSIS A. Irreparable Injury The Circuit “has set a high standard for irreparable injury.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.Cir.2006). “First, the injury ‘must be both certain and great; it must be actual and not theoretical.’ ” Id. (quoting Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (per curiam)). To meet this standard, the injury must be “of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Id. (citation omitted). “Bare allegations of what is likely to occur are of no value since the court must decide whether the harm will in fact occur.” Wisconsin Gas Co., 758 F.2d at 674 (emphasis in original). In addition, “the injury must be beyond remediation.” Chaplaincy, 454 F.3d at 297. As the Circuit has explained: The key word in" }, { "docid": "4865589", "title": "", "text": "It is in this sense that all four factors must be balanced against each other. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C.Cir.2009) (internal quotation marks and citations omitted). III. ANALYSIS A. Irreparable Injury The Circuit “has set a high standard for irreparable injury.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.Cir.2006). “First, the injury ‘must be both certain and great; it must be actual and not theoretical.’ ” Id. (quoting Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (per curiam)). To meet this standard, the injury must be “of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Id. (citation omitted). “Bare allegations of what is likely to occur are of no value since the court must decide whether the harm will in fact occur.” Wisconsin Gas Co., 758 F.2d at 674 (emphasis in original). In addition, “the injury must be beyond remediation.” Chaplaincy, 454 F.3d at 297. As the Circuit has explained: The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation weighs heavily against a claim of irreparable harm. Id. (quoting Wisconsin Gas Co., 758 F.2d at 674). Cardinal claims that without a preliminary injunction, it will suffer irreparable injury in the form of lost customers, reduced profits, costs associated with rerouting drug shipments from other facilities, and reputational harm, all of which it claims will be unrecoverable due to the government’s sovereign immunity. See Cardinal’s Mem. at 29-30; Cardinal’s Reply at 20. For the reasons that follow, none of these purported harms pass the high bar for irreparable injury. 1. Economic Loss “The loss of business opportunities, market share, and customer goodwill are typically considered to be economic harms.” Air Transport Ass’n of America, Inc. v. Export-Import Bank of the U.S., 840 F.Supp.2d 327, 335, 2012 WL" } ]

[ { "docid": "22651475", "title": "", "text": "direction in which an agency chooses to move does not alter the standard of judicial review established by law. The Department of Transportation accepts the applicability of the “arbitrary and capricious” standard. It argues that under this standard, a reviewing court may not set aside an agency rule that is rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency by the statute. We do not disagree with this formulation. The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a “rational connection between the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168 (1962). In reviewing that explanation, we must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., supra, at 285; Citizens to Preserve Overton Park v. Volpe, supra, at 416. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency’s action that the agency itself has not given. SEC v. Chenery Corp., 332 U. S. 194, 196 (1947). We will, however, “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., supra, at 286. See also Camp v. Pitts, 411 U. S. 138, 142-143 (1973) (per curiam)." } ]

[ { "docid": "13139619", "title": "", "text": "by the EPA constituting an abuse of discretion. The Mills, on the other hand, argue that the EPA violated the Clean Water Act by issuing a TMDL prior to establishing less burdensome technology-based limitations which the Mills assert are required by the Act before the EPA can establish TMDLs. ANALYSIS I. Environmental Group Claims A. Standard of Review Under the Administrative Procedure Act (“APA”), “the reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Longview Fibre, 980 F.2d at 1313. We recently noted, [t]he APA does not give this court power “to substitute its judgment for that of the agency” but only to “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” [Citizens to Preserve] Overton Park [, Inc. v. Volpe], 401 U.S. [402,] 416 [91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 [1971]. We may reverse only if the decision was “arbitrary and capricious” within the meaning of the APA, 5 U.S.C. § 706(2)(A), in that the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Beno v. Shalala, 30 F.3d 1057, 1073 (9th Cir.1994) (quoting Motor Vehicle Mfr. Ass’n v. State Farm Ins., 463 U.S. 29, 44, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983)). B. Discussion DOC contends that the TMDL fails to implement state water quality standards because it: 1) inadequately protects aquatic life and wildlife, 2) inadequately protects certain human subpopulations, and 3) fails to consider the cumulative effect of dioxin-related pollutants in the water system. 1. The TMDL: Aquatic Life and Wildlife DOC maintains that the EPA abused its discretion by arbitrarily and capriciously considering" }, { "docid": "14475197", "title": "", "text": "standard of review for [an agency’s] action under [a federal statute], the APA supplies the applicable standard.”). Under the APA, an administrative action may be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “We will sustain an agency action if the agency has articulated a rational connection between the facts found and the conclusions made.” Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1090 (9th Cir.2005) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Although a decision may be upheld if the agency’s reasoning may be reasonably inferred, it is impermissible to “infer an agency’s reasoning from mere silence.” Id. at 1091(quoting Beno v. Shalala, 30 F.3d 1057, 1073-74 (9th Cir.1994)). Reversal of the agency action is appropriate when “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. at 1090 (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. 2856). ANALYSIS A. Standing As delineated by Appellants in their Opening Brief, the “issue presented for review” herein is: Whether Interior’s method of accounting for Central Valley Project (“CVP”) yield dedicated and managed under section 3406(b)(2) of the CVPIA during June, 2004, is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law because it excluded water dedicated and managed to benefit fishery resources and habitat pursuant to numerical Delta outflow and San Joaquin River flow objectives set forth in the 1995 Water Quality Control Plan (“1995 WQCP”) against the 800,000 acre-feet limit imposed by Congress. Because the Federal Appellees have renewed their challenge of the Water Agencies’ standing to raise this issue, we initially turn to that" }, { "docid": "19620137", "title": "", "text": "three conditions' statutory and constitutional flaws, Plaintiffs also contend that the conditions are arbitrary and capricious. Pls.' Reply 24-28. Under the APA, courts must \"hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.\" 5 U.S.C. § 706(2)(A). Under this standard, the agency is required to \"examine the relevant data and articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.' \" Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. United States , 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) ). When an agency changes its policy, the agency must \" 'display awareness that it is changing position' and 'show that there are good reasons for the new policy.' \" Encino Motorcars, LLC v. Navarro , --- U.S. ----, 136 S.Ct. 2117, 2126, 195 L.Ed.2d 382 (2016) (quoting FCC v. Fox Television Stations, Inc. , 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) ). Agency action is arbitrary and capricious if the agency \"relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.\" State Farm , 463 U.S. at 43, 103 S.Ct. 2856. In support of the decision to impose the three conditions, Defendants point to five documents in the administrative record: (1) a 2007 audit report by DOJ's Office of the Inspector General on the cooperation of jurisdictions participating in the State Criminal Alien Assistance Program in the removal of criminal aliens (\"2007 OIG Audit\"), Holt Decl. Ex. 9, at AR-00001-109, Doc. 33-9; (2) a May 2016 memorandum from DOJ's Office of the Inspector General regarding alleged violations" }, { "docid": "611853", "title": "", "text": "legal one: Are USFWS’s decisions in its Revised 1994 Finding to make listing decisions for the bull trout species only on the basis of five population segments and to not propose three of those segments for listing under the ESA sufficiently reasoned and supported by the record to withstand judicial scrutiny? Therefore, summary judgment is an appropriate vehicle for resolving this dispute. USFWS’s actions pursuant to the ESA are reviewed under the federal Administrative Procedures Act (APA), 5 U.S.C. § 706(2)(A). Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 981-82 (9th Cir.1985). Under this standard, the reviewing court must set aside the agency’s decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “A decision is arbitrary and capricious if the agency ‘has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’” O’Keeffe’s, Inc. v. U.S. Consumer Product Safety Comm’n, 92 F.3d 940, 942 (9th Cir.1996) (quoting Motor Vehicles Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). An agency action is also arbitrary and capricious if the agency fails to “articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n., 463 U.S. at 43, 103 S.Ct. 2856 (citations omitted). Finally, an agency must set forth clearly the grounds on which it acted. Atchi-son T. & S.F. Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 807, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973). “Review under the arbitrary and capricious standard is narrow, and the reviewing court may not substitute its judgment for that of the agency.” O’Keeffe’s, Inc., 92 F.3d at 942 (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376," }, { "docid": "2826980", "title": "", "text": "set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “The ‘arbitrary and capricious’ standard of review as set forth in the APA is highly deferential,” and the Court must “presume the validity of agency action.” Am. Horse Prot. Ass’n v. Yeutter, 917 F.2d 594, 596 (D.C.Cir.1990). Nonetheless, a reviewing court must ensure that the agency “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (citations and quotation marks omitted). An agency’s decision will be considered arbitrary and capricious if: the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. However, a “court is not to substitute its judgment for that of the agency,” and will “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Id. (citations and quotation marks omitted). Despite the high degree of deference accorded to agency action, the 2014 Secretarial Determination fails on multiple fronts. The Privatization Act requires that the Secretary “determine[] that the sale of the material will not have an adverse material impact on the domestic uranium mining, conversion, or enrichment industry.” 42 U.S.C. § 2297h-10(d)(2)(B). Prior to issuing its determination, the Department received a detailed submission from ConverDyn outlining its projected financial losses caused by the Department’s planned transfers. Defs.’ Opp’n, Attach. 1, Ex. 1-A (Nuclear Energy Analysis) at 8. While the Department acknowledged receipt of these materials during its deci-sionmaking process, it nowhere addresses why the losses described in ConverDyn’s submission do not constitute an “adverse material impact.” As" }, { "docid": "7539755", "title": "", "text": "not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. 467 U.S. at 842-43, 104 S.Ct. 2778 (footnotes omitted); accord New York Pub. Interest Research Group v. Whitman, 321 F.3d 316, 324 (2d Cir.2003). To the extent that we review the reasonableness of the agency’s actions under the APA, our inquiry is governed by State Farm: The scope of review under the arbitrary and capricious standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. In reviewing that explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency’s action that the agency itself has not given. We will, however, uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. State Farm, 463 U.S. at 43, 103 S.Ct. 2856 (citations and internal quotation marks omitted); accord Henley v. FDA 77 F.3d 616, 620 (2d Cir.1996); see also Arent v. Shalala, 70 F.3d 610, 614-16 (D.C.Cir.1995) (discussing the relationship between Chevron and State Farm). II. The One-Tire, 30 Percent" }, { "docid": "2188709", "title": "", "text": "agency action only when it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Prairie Band Pottawatomie Nation v. Fed. Highway Admin., 684 F.3d 1002, 1008 (10th Cir.2012). When reviewing agency action, our task is to ensure the agency examined the relevant data and articulated a rational connection between that data and its decision. Citizens’ Comm, to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir.2008); FCC v. Fox TV. Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). Our deference to the agency is more substantial when the challenged decision involves technical or scientific matters within the agency’s area of expertise. Morris v. U.S. Nuclear Regulatory Comm’n, 598 F.3d 677, 691 (10th Cir.), cert. denied, — U.S. -, 131 S.Ct. 602, 178 L.Ed.2d 436 (2010). Accordingly, we will not set aside an agency’s decision unless: the agency (1) entirely failed to consider an important aspect of the problem, (2) offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, (3) failed to base its decision on consideration of the relevant factors, or (4) made a clear error of judgment. Forest Guardians, 611 F.3d at 711. “Deficiencies in an EIS that are mere ‘flyspecks’ and do not defeat NEPA’s goals of informed decisionmaking and informed public comment will not lead to reversal.” New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 704 (10th Cir.2009). And even if an agency violates the APA, this does not require reversal unless the appellant demonstrates prejudice resulting from the error. Prairie Band, 684 F.3d at 1008. As these principles imply, a “presumption of validity attaches to the agency action and the burden of proof rests with the appellants who challenge such action.” New Mexico, 565 F.3d at 704. B. NEPA WildEarth’s sole NEPA claim is that the NPS deviated from NEPA’s required procedure by declining to consider the natural wolf alternative in its environmental impact statement." }, { "docid": "15863378", "title": "", "text": "and applying agency standard of review). Accordingly, rather than the de novo standard of review for summary judgment, we apply the standard of review for agency decisions. Id. Agency decisions may be set aside only if “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Administrative Procedure Act, 5 U.S.C. § 706(2)(A); Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392, 1401 (9th Cir.1995). Review under the arbitrary and capricious standard is narrow, and the reviewing court may not substitute its judgment for that of the agency. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376, 109 S.Ct. 1851, 1860, 104 L.Ed.2d 377 (1989). However, the agency must articulate a rational connection between the facts found and the conclusions made. United States v. Louisiana-Pacific Corp., 967 F.2d 1372, 1376 (9th Cir.1992). This court may reverse under the arbitrary and capricious standard only if the agency has relied on factors that Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517, 1521 (9th Cir.1995). An agency’s fact findings must be upheld if supported by substantial evidence in the record. See Diamond Walnut Growers v. NLRB, 53 F.3d 1085, 1087 (9th Cir. 1995). Substantial evidence means more than a mere scintilla but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Andrews v. Shalala, 53 F.3d 1035,1039 (9th Cir.1995). Ill As a threshold matter, we address Cross-Appellant Kodak’s affirmative defense that the Trustee lacks standing to bring these undercharge actions. Kodak bases its standing argument on this court’s analysis in ICC v. Transcon Lines, 990 F.2d 1503 (9th Cir.1992), cert. denied sub nom. Gumport v. ICC, 508 U.S. 981, 113 S.Ct. 2987, 125 L.Ed.2d 683 (1993) (denying Trustee’s petition for certiorari). As the bankruptcy court" }, { "docid": "9523743", "title": "", "text": "the Administrative Procedures Act (APA), 5 U.S.C. § 706(2)(A). Under the APA, the reviewing court must set aside the agency’s decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). A decision is arbitrary and capricious if the agency has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. O’Keeffe’s, Inc. v. U.S. Consumer Product Safety Comm’n, 92 F.3d 940, 942 (9th Cir.1996). An agency action is also arbitrary and capricious if the agency fails to articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. Id. Finally, an agency must set forth clearly the grounds on which it acted. See Atchison T. & S.F. Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 807, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973). “Review under the .arbitrary and capricious standard is narrow, and the reviewing court may not substitute its judgment for that of the agency.” O’Keeffe’s, 92 F.3d at 942 (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). Courts “must be at [their] most deferential when reviewing scientific judgments and technical analyses within the agency’s expertise.” Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir.2010). Courts “are not to act as a panel of scientists, instructing the agency, choosing among scientific studies, and ordering the agency to explain every possible scientific uncertainty.” Id. at 1074 (citation omitted). “ ‘When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.’ ” Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) (en banc) (quoting Marsh, 490 U.S. at" }, { "docid": "19432847", "title": "", "text": "the merits of Plaintiffs' APA claims below. e. Arbitrary and Capricious, and Contrary to Law Pursuant to the Administrative Procedure Act (\"APA\"), an agency action must be set aside and held unlawful if it is \"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.\" 5 U.S.C. § 706(2)(A). The burden is on Plaintiffs to show any decision or action was arbitrary and capricious. Kleppe v. Sierra Club , 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). Agency action will be upheld if the agency \"has considered the relevant factors and articulated a rational connection between the facts found and the choice made.\" Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc. , 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). An agency's decision can be upheld only on the basis of the reasoning in that decision. High Sierra Hikers Ass'n v. Blackwell , 390 F.3d 630, 638 (9th Cir. 2004). \"The scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency,\" but \"the agency must examine the relevant data and articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.' \" Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines v. United States , 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) ). An agency decision may be reversed under the arbitrary and capricious standard: [I]f the agency has relied on factors that Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. Here, Plaintiffs argue that HHS's termination of their cooperative agreements is both contrary" }, { "docid": "17851232", "title": "", "text": "have changed the Secretary’s mind. See People’s Mojahedin, 613 F.3d at 229 n. 6 (D.C.Cir.2010) (“[B]y declining to assume that the [designated entity] could not have changed the Secretary’s mind in the absence of due process protections, we cast doubt on whether any denial could be found harmless, perhaps because a convincing response by the [entity] to the unclassified material might affect the Secretary’s view not only of that evidence but of the classified material as well.”). And the Court need not now articulate what remedy it would order if it ultimately finds for FBME on the merits of its claim. It is enough at this stage that FBME is likely to succeed in showing that FinCEN did not fulfill its procedural obligations under the APA. 2. The APA’s Prohibition of Arbitrary and Capricious Agency Action ; „. In Count' II of its Complaint, FBME claims that the Final Rule is arbitrary and capricious under the APA in that it reflects FinCEN’s failure (1) to consider viable and obvious, less-punitive alternatives -to • the prohibition in the fifth special measure, such as the imposition of a fine or- a special monitor;' (2) to consider relevant data in promulgating the rule; and (3) to .adequately explain how the rule satisfies Section 311’s requirements. The Court discusses each of these .-contentions below. The APA provides that a reviewing court “shall ... hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A), This standard of review is “narrow”; the “court is not to substitute its judgment for that of the agency.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Rather, it' should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Id. (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281," }, { "docid": "20400649", "title": "", "text": "(2008). We review the district court’s grant of a preliminary injunction for abuse of discretion. Beno v. Shalala, 30 F.3d 1057, 1063 (9th Cir.1994). We must first determine whether the district court “identified and applied the correct legal rule to the relief requested.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.2009) (en banc). If not, that error of law necessarily constitutes an abuse of discretion. Id. at 1261. If, however, the district court identified and applied the correct legal rule, we will reverse only if the court’s decision “resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” Id. at 1263. In considering Plaintiffs’ APA claims, we must follow “additional requirements for review.” Earth Island Inst. v. Carlton, 626 F.3d 462, 468 (9th Cir.2010). Under the APA, we may not set aside agency action unless that action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This standard is met only where the party challenging the agency’s decision meets a heavy burden of showing that “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Ill APA CLAIMS AGAINST THE SECRETARY A We first consider whether our decision in Orthopaedic Hospital is dispositive of the issues in these appeals. In Orthopaedic Hospital, a hospital and hospital association challenged California’s reduction of reimbursement rates for providers of hospital outpatient services, arguing that DHCS reduced the rates “without proper consideration of the effect of hospital costs” on the § 30(A) factors of efficiency, economy, quality of care, and beneficiary access. 103 F.3d at 1492. The" }, { "docid": "16761738", "title": "", "text": "is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A. Challenge to Application of Fuels CE to Eldorado and Lassen National Forest The Sierra Club and the Forest Service agree that the Administrative Procedure Act’s (APA) arbitrary and capricious standard applies to the Sierra Club’s challenge to the Fuels CE’s application to the Eldorado and Lassen National Forest projects. “An agency’s determination that a particular action falls within one of its categorical exclusions is reviewed under the arbitrary and capricious standard.” Alaska Ctr., 189 F.3d at 857. Under the APA, a court may set aside an agency action if the court determines that the action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Marsh, 490 U.S. at 375-77, 109 S.Ct. 1851 (arbitrary and capricious standard applies to agency findings which involve agency expertise). “Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Under this deferential standard, we are “not empowered to substitute [our] judgment for that of the agency.” Id. Consequently, we may reverse the decision as arbitrary or capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that ran counter to the evidence before the agency, or offered one that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. W. Radio Servs. Co. v. Espy, 79 F.3d 896, 900 (9th Cir.1996). Nevertheless, to withstand review “[t]he agency [] must articulate a rational connection between the facts found and the conclusions reached.” Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156-57 (9th Cir.2006). We will defer to an agency’s decision only if it" }, { "docid": "15583805", "title": "", "text": "judgment. Lands Council filed this appeal. STANDARD OF REVIEW We have jurisdiction under 28 U.S.C. § 1291. We review a grant of summary judgment de novo. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir.1996). Section 706 of the Administrative Procedure Act (APA) governs judicial review of agency decisions under the NFMA and NEPA. 5 U.S.C. § 706; City of Sausalito v. O’Neill, 386 F.3d 1186, 1205 (9th Cir.2004) (“Because the statutes ... do not contain separate provisions for judicial review, our review is governed by the APA.”). An agency’s action must be upheld unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “Review under the arbitrary and capricious standard is narrow and we do not substitute our judgment for that of the agency.” Lands Council, 537 F.3d at 987 (internal quotations marks and brackets omitted) (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir.2006), abrogated on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). A decision is arbitrary and capricious “only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Lands Council, 537 F.3d at 987 (citations and internal quotation marks omitted). Agency action is valid if the agency “considered the relevant factors and articulated a rational connection between the facts found and the choices made.” Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir.2008) (citations and internal quotation marks omitted). Moreover, we generally must be “at [our] most deferential” when reviewing scientific judgments and technical analyses within the agency’s expertise. See Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). We are not to “act as a" }, { "docid": "19057572", "title": "", "text": "129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). Under the APA, “we review the underlying agency decision to determine whether it was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng’rs, 702 F.3d 1156, 1164-65 (10th Cir.2012) (quoting 5 U.S.C. § 706(2)(A)); see also Fox Television, 556 U.S. at 513, 129 S.Ct. 1800; Qwest Corp. v. FCC, 689 F.3d 1214, 1224 (10th Cir.2012). Although we review matters of law de novo, see, e.g., Wyo. Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1231 (10th Cir.2000); Trimmer v. U.S. Dep’t of Labor, 174 F.3d 1098, 1102 (10th Cir.1999), ultimately, the scope of our review under section 706(2)(A) “is ‘narrow’; as [the Supreme Court] ha[s] often recognized, ‘a court is not to substitute its judgment for that of the agency.’ ” Judulang v. Holder, — U.S. -, 132 S.Ct. 476, 483, 181 L.Ed.2d 449 (2011) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). [6] An agency’s action is thus arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. State Farm, 463 U.S. at 43, 103 S.Ct. 2856; accord Hillsdale, 702 F.3d at 1165. “Our inquiry under the APA must be thorough, but the standard of review is very deferential to the agency.... A presumption of validity attaches to the agency action and the burden of proof rests with the parties who challenge such action.” Hillsdale, 702 F.3d at 1165 (citations omitted) (internal quotation marks omitted); accord Sorenson Commc’ns, Inc. v. FCC (Sorenson II), 659 F.3d 1035, 1046 (10th Cir.2011); Sorenson Commc’ns, Inc. v. FCC (Sorenson I), 567 F.3d 1215, 1221 (10th Cir.2009). 2 The FCC dismissed Council" }, { "docid": "21760033", "title": "", "text": "new policy are better than the reasons for the old one...it suffices that the new policy is permissible under the statute....” FCC, 556 U.S. at 515, 129 S.Ct. 1800. Nonetheless, “an agency must give adequate reasons for its decisions.” Encino, 136 S.Ct. at 2125. An agency “must examine the relevant data and articulate a satisfactory explanation for its action including rational connection between the facts found and the choice made.” Motor Vehicle, 463 U.S. at 43, 103 S.Ct. 2856. An agency’s action is not considered the result of “reasoned decision-making” when the agency: 1. “has relied on factors which Congress has not intended, it to consider,” 2. “entirely failed to consider an important aspect of the problem,” 3. “offered an explanation for its decision that runs counter to the evidence before the agency, or” 4. Provides a justification that “is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. (emphasis added). Notably, a claim based on the “arbitrary and capricious” standard is accorded a “narrow standard of review” under which “a court is not to substitute its judgment for that of the agency.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513-14, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). The Attorney General points to three public explanations to demonstrate that the DOJ articulated “adequate reasons for its decisions” to impose the three conditions. First, the DOJ issued a “Backgrounder on Grant Requirements” on July 25, 2017. (ECF 1, Ex. 1). Second, the Attorney General issued a press release, also on July 25, 2017. See DOJ Press Release No. 17-826. Third, the Attorney General points to a May, 2016 memorandum, discussed previously, in which the Office of the Inspector General presents findings to DOJ on local and state compliance with Section 1373. As demonstrated below, the three- items that the Attorney General cites as evincing “adequate reasons for [DOJ’s] decisions,” Encino, 136 S.Ct. at 2125, do not “articulate a satisfactory explanation for [DOJ’s] action.” Motor Vehicle, 463 U.S. at 43, 103 S.Ct. 2856. b) The “Backgrounder on Grant Requirements”" }, { "docid": "7932270", "title": "", "text": "706(2), provides that on a petition for review of an agency action, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.... The Supreme Court has stated that [t]he scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. In reviewing that explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies: [w]e may not supply a reasoned basis for the agency’s action that the agency itself has not given. We will, however, uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotation marks and citations omitted). In situations where “an agency has engaged in line-drawing determinations^] ... our review is necessarily deferential to agency expertise,” but the agency’s actions must still “not be ‘patently unreasonable’ or run counter to the evidence before the agency.” Prometheus" }, { "docid": "21730146", "title": "", "text": "bitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2001). A decision is arbitrary and capricious if the agency: has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. O’Keeffe’s, Inc. v. United States Consumer Prod. Safety Comm’n, 92 F.3d 940, 942 (9th Cir.1996) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm, Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), and citing Haw. Helicopter Operators Ass’n v. Fed. Aviation Admin., 51 F.3d 212, 214-15 (9th Cir.1995) (quoting Beno v. Shalala, 30 F.3d 1057, 1073 (9th Cir.1994) (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 44, 103 S.Ct. 2856))). Put another way, “if the agency examines the relevant facts and reaches a conclusion that is rationally supported by the facts[,] then its decision is not arbitrary, even if the decision is a ‘stupid’ one.” United States ex rel. Sequoia Orange Co. v. Sunland Packing House Co., 912 F.Supp. 1325, 1341 (E.D.Cal.1995) (quoting Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir.1992) (Under APA review, “[s]o long as it explains its reasons, [an agency] may adopt a rule that all commentators think is stupid or unnecessary.”)) (internal citation omitted). “The court will let the agency’s decision stand if the ‘evidence before the agency provided a rational and ample basis for it.’ ” Christopher A. Goelz & Meredith J. Watts, California Practice Guide: Ninth Circuit Civil Appellate Practice ¶ 14:554 (quoting Systech Envtl. Corp. v. E.P.A., 55 F.3d 1466, 1469 (9th Cir.1995)). “Most importantly, ‘review under the arbitrary and capricious standard is narrow, and the reviewing court may not substitute its judgment for that of the agency.’” United States v. Snoring Relief Labs Inc., 210 F.3d 1081, 1085 (9th Cir.2000) (quoting O’Keeffe’s, Inc., 92 F.3d at 942 (citing" }, { "docid": "197301", "title": "", "text": "F.3d 435, 457 (6th Cir.2004)). The APA directs that when reviewing the decision of an administrative agency, a court shall “hold unlawful and set aside the agency action” if the action is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “A court reviewing an agency’s adjudicative action should accept the agency’s factual findings if those findings are supported by substantial evidence on the record as a whole.” Arkansas v. Oklahoma, 503 U.S. at 113, 112 S.Ct. 1046 (emphasis altered). Under this APA standard, the reviewing court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). An agency decision is “arbitrary and capricious” when the agency: has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Nat’l Ass’n of Home Builders v. Defenders of Wildlife, - U.S. -, 127 S.Ct. 2518, 2529, 168 L.Ed.2d 467 (2007) (quoting Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). The reviewing court “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. 2856. However, “[e]ven when an agency explains its decision with less than ideal clarity, a reviewing court will not upset the decision on that account if the agency’s path may be reasonably discerned.” Alaska Dep’t of Env’t Conservation v. EPA, 540 U.S. 461, 497, 124 S.Ct. 983, 157 L.Ed.2d" }, { "docid": "19632675", "title": "", "text": "Rule 56 [ ] does not apply because of the limited role of a court in reviewing the administrative record .... Summary judgment is [ ] the mechanism for deciding whether as a matter of law the agency action is supported by the administrative record and is otherwise consistent with the APA standard of review.\" Southeast Conference v. Vilsack , 684 F.Supp.2d 135, 142 (D.D.C. 2010). The APA \"sets forth the full extent of judicial authority to review executive agency action for procedural correctness.\" FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). It requires courts to \"hold unlawful and set aside agency action, findings, and conclusions\" that are \"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.\" 5 U.S.C. § 706(2)(A). \"This is a 'narrow' standard of review as courts defer to the agency's expertise.\" Ctr. for Food Safety v. Salazar , 898 F.Supp.2d 130, 138 (D.D.C. 2012) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) ). However, an agency is still required to \"examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.\" Motor Vehicle Mfrs. Ass'n , 463 U.S. at 43, 103 S.Ct. 2856 (internal quotation omitted). \"Moreover, an agency cannot 'fail[ ] to consider an important aspect of the problem' or 'offer[ ] an explanation for its decision that runs counter to the evidence' before it.\" Dist. Hosp. Partners, L.P. v. Burwell , 786 F.3d 46, 57 (D.C. Cir. 2015) (quoting Motor Vehicle Mfrs. Ass'n , 463 U.S. at 43, 103 S.Ct. 2856 ). III. DISCUSSION After considering the arguments of all the parties and reviewing the administrative record, the Court concludes that the Assistant Secretary's disapproval of Plaintiff's 2014 compact amendment was not arbitrary or capricious. The Assistant Secretary determined that the amendment violated IGRA in two ways. First, the Assistant Secretary determined that the amendment violated IGRA by making one" } ]

[ { "docid": "21026965", "title": "", "text": "N.J. Eq. 391, 157 A. 676; Dolan v. Wagner, 95 N.J. Eq. 1, 125 A. 2. This is based upon the presumption of an intention on the part of both parties after the impediment is removed, to live in a state of common law marriage. Plaintiff contends that while non-ceremonial common law marriages are abolished by the Act of 1939, such marriages, when initiated by a solemnization after issuance of a license, are legalized as valid marriages provided the parties continue to live together as husband and wife. Effectively this would mean that the law, as interpreted by the cases cited, remains controlling under the facts as set forth in the stipulation. However compelling may be the reason in any particular situation, and however grave the hardships, it seems to the court that such a construction of the statute would contravene the logical and legal requirements of the language of the Act and the purposes for which it was passed. A marriage such as that entered into by the plaintiff and William C. Brown, while his prior marriage was still in force, is a nullity. Rooney v. Rooney, 54 N.J. Eq. 231, 34 A. 682; Sparks v. Ross, 79 N.J. Eq. 99, 80 A. 932; In Re Franchi’s Estate, 119 N.J.Eq. 457, 182 A. 887. No amount of civil or religious ceremonies even after the issuance of a license can make it anything else. The contention of the plaintiff would have the removal of the impediment to a legal marriage constitute a validation of the originally invalid ceremonial marriage, which is nowhere provided for in (he Statute. It could by no means be said to revive and legitimize a null and void marriage under any circumstances, for a nullity being something which never existed cannot be “revived.” Whatever merit the plaintiffs claim may be said speciously to possess, is dissipated when it is realized that to lend weight to it the ceremony must be said to be operative not in the present but in the future. At the time of its performance, the marriage was null and void and the" } ]

[ { "docid": "18786972", "title": "", "text": "with her brother, who believed that she and Mr. Renshaw were legally married, the couple never met anyone they knew while in Pennsylvania. DISCUSSION Section 202(e) of the Social Security Act, 42 U.S.C. § 402(e), provides that a widow of an individual who died while fully insured is entitled to widow’s insurance bene-. fits, if she meets certain other conditions not in issue on this appeal. Section 216(h)(1)(A) of the Social Security Act, 42 U.S.C. § 416(h)(1)(A), provides that an applicant is the widow of an insured individual if the courts of the state in which the insured individual was domiciled at the time of his death would find that the applicant and insured individual were validly married at the time of his death. Since Mr. and Mrs. Renshaw were domiciled in New York at the time of his death, New York law governs her status as a widow. Although New York does not itself recognize common-law marriages, a common-law marriage contracted in another state will be recognized as valid in New York if it is valid where contracted. Mott v. Duncan Petroleum Trans., 51 N.Y.2d 289, 292, 434 N.Y.S.2d 155, 157, 414 N.E.2d 657, 659 (1980). The law to be applied in determining the validity of such a marriage is the law of the state in which the marriage occurred. Id. Since plaintiff claims that she contracted a common-law marriage with her husband in Pennsylvania during their travels through the state, the appropriate law to apply is the law of Pennsylvania. The Commonwealth of Pennsylvania recognizes the institution of common-law marriage. In re Estate of Stauffer, 504 Pa. 626, 476 A.2d 354, 356 (1984). Believing that common-law marriage is a fruitful source of perjury and fraud, however, the Pennsylvania courts have imposed a heavy burden on one who grounds his or her claim on an allegation of common-law marriage. Id. Generally, a common-law marriage may be created by uttering words in the present tense with the intent to establish a marital relationship, Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978, 980 (1979); but where no such utterance is" }, { "docid": "18786969", "title": "", "text": "GEORGE C. PRATT, Circuit Judge: This appeal presents a single question: did the Secretary of Health and Human Services and the district court err in determining that, under Pennsylvania law, plaintiff Edith L. Renshaw was not the common-law wife of the decedent Albert Renshaw, and therefore not entitled to widow’s insurance benefits under Title II of the Social Security Act. Finding that Edith and Albert Renshaw had entered into a valid common-law marriage under the laws of the Commonwealth of Pennsylvania, we reverse the decision of the district court and remand to the Secretary for action consistent with this opinion. BACKGROUND After a brief courtship following their respective divorces from other individuals, Albert and Edith Renshaw began living together on July 5, 1958 in Baltimore, Maryland. Although the couple did not have a formal ceremonial marriage, Mrs. Renshaw testified that when she and Mr. Renshaw began living together they agreed to live “just as though [they] were married” and that they considered themselves “husband and wife”. The evidence supports her assertion. Edith immediately adopted the last name Renshaw and a short time later, changed the name on her social security card — the only identification she had at that time — to reflect her new status. The couple told friends and relatives that they had been married, and introduced each other to relatives, friends, and acquaintances as husband and wife. Mr. Renshaw gave Mrs. Renshaw a wedding band shortly after they began to live together, and throughout the 21 years they lived together they celebrated July 5 as their marriage anniversary. The couple never separated or broke up, and Mrs. Renshaw testified that neither ever had relationships with others during this time. Moreover, the couple filed joint tax returns as husband and wife, and Mr. Renshaw listed Mrs. Renshaw as his wife and beneficiary on his life insurance policy. Immediately after their marriage the Renshaws lived in Maryland for several months. After that, they moved to Buffalo, New York, where they lived for the next twenty years. During this time, the couple had one child, Lorna Gail Renshaw. On approximately" }, { "docid": "3253039", "title": "", "text": "provide a definition of the term “lawful widow.” Other courts look to state law for a definition of “widow,” apparently following the lead of De Sylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956), which held that federal courts should look to state law in defining terms describing familial relations. “[T]here is no federal law of domestic relations, which is primarily a matter of state concern.” 351 U.S. at 580, 76 S.Ct. at 980. See, e. g., Brinson v. Brinson, 334 F.2d 155 (4th Cir. 1964); Lembcke v. United States, 181 F.2d 703 (2d Cir. 1950). This case is complicated by the fact that the widows each married Spearman, and now live, in different states. For the validity of each marriage viewed separately, the law of the state where the marriage occurred controls. For the law to determine which of two conflicting marriages is the valid one, and therefore to determine which spouse is the “widow,” we hold that California law should apply, following the Brinson case, supra, which held that the law of an insured’s domicile.at the time of his death should govern. See also Grove v. Metropolitan Life Insurance Co., 271 F.2d 918 (4th Cir. 1959). This holding is appropriate here since California was not only Spearman’s domicile, but also he accepted Government employment in California and entered into the insurance contract while there. California law is in accord with the general rule which provides that a second marriage cannot be validly contracted if either spouse is then married. E. g., People v. Coronado, 57 Cal.App.2d 805, 135 P.2d 647 (1943); cf. Sohnlein v. Winchell, 230 Cal.App.2d 508, 41 Cal.Rptr. 145 (1964). In a contest between conflicting marriages under California law, once the first wife presents evidence that her marriage has not been dissolved, then the burden of persuasion shifts to the second wife to establish that her spouse’s marriage to his first wife had been dissolved. Otherwise, the first wife is deemed to have established her status as the lawful wife. According to the California rule, as in most states, the process of" }, { "docid": "19722760", "title": "", "text": "to each other, the applicant is deemed to be the widow if the courts would accord her the same rights as if she were the widow in the devolution of intestate personal property. Section 216(h)(1)(B) of the Act, as amended, provides in pertinent part, that if applicant cannot qualify under Section 216(h)(1)(A) of the Act, as amended, she can qualify if she can establish that she and the deceased had a ceremonial marriage, that she married him in “good faith”, that the only impediment to a valid marriage was a legal impediment of which she was unaware, and they were living together in the same household at the time of his death. A woman who has been entitled under this provision shall have her benefits terminated effective with the month that the Secretary of Health, Education and Welfare certified payment to another woman who qualifies as the widow under Section 216(h)(1) of the Act, as amended. Section 404.344 of the Code of Federal Regulations, Chapter III of Title 20, provides in pertinent part, that to decide your relationship to the insured, we look first to state laws. If your relationship cannot be established under state law, you may still be eligible for benefits if your relationship as the insured’s widow is based upon a “deemed valid marriage” as described in the Act. Therefore, we must look to the laws of Puerto Rico to determine whether the courts of Puerto Rico will consider plaintiff to be the legal widow of the wager earner. Article 68 of the Civil Code of Puerto Rico states that marriage is a civil institution, originating in a civil contract, whereby a man and a woman mutually agree to become husband and wife and to discharge towards each other the duties imposed by law. It is valid only when contracted and solemnized in accordance with the provisions of law; and it may be dissolved before the death of either party only in the cases expressly provided for in this title. Article 69 of the Civil Code also provides that the requisites for the validity of a marriage" }, { "docid": "17670354", "title": "", "text": "look to the laws of the State where the insured had a permanent home when you applied for wife’s or husband’s benefits____If you and the insured were validly married under State law at the time you apply for wife’s or husband’s benefits or at the time the insured died if you apply for widow’s, widower’s, mother’s, or father’s benefits, the relationship requirement will be met. John Fontana was domiciled in New York at the time that plaintiff filed her application. Under N.Y. Dom. Rel. Law § 6, a marriage is void if entered into by a person who was never divorced from his previous spouse. John Fontana’s Mexican divorce from Dora Fontana is not valid in New York because it was obtained without personal service of Dora Fontana. See Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709 (Ct.App.1965). Consequently, plaintiff and John Fontana were not validly married under New York state law. In recognition of this, the New York State Supreme Court granted plaintiff an annulment, rather than a divorce, to dissolve plaintiffs relationship with John Fontana. Even if a claimant cannot establish a valid marriage under state law, she may still be entitled to wife’s benefits based upon a “deemed valid marriage.” Under 20 C.F.R. § 404.346, a claimant is deemed to have been a wife if: in good faith, you went through a marriage ceremony with the insured that would have resulted in a valid marriage except for a legal impediment. A legal impediment includes only an impediment which results because a previous marriage had not ended at the time of the ceremony or because there was a defect in the procedure followed in connection with the intended marriage____ Good faith means that at the time of the ceremony you did not know that a legal impediment existed, or if you did know, you thought that it would not prevent a valid marriage. This provision tracks the language of 42 U.S.C. § 416(h)(l)(B)(i), which provides that: [when an] applicant is not the wife, divorced wife, widow, surviving divorced wife, husband, divorced husband, widower, or" }, { "docid": "17670356", "title": "", "text": "surviving divorced husband of [the insured], but it is established ... that such applicant in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage, then ... such purported marriage shall be deemed to be a valid marriage. Plaintiffs marriage to John Fontana would have been valid but for his prior marriage to Dora Fontana: The Administrative Law Judge determined that plaintiff went through a marriage ceremony with John Fontana in good faith, and the evidence in the record supports this conclusion. IV Section 416(h)(l)(B)(i) of Title 42 goes on to provide that: [I]n the case of any person who would be deemed ... a wife, widow, husband, or widower of the insured individual, such marriage shall not be deemed to be a valid marriage unless the applicant and the insured individual were living in the same household at the time of the death of the insured individual or (if the insured individual is living) at the time the applicant files the application. Similarly, 20 C.F.R. § 404.346 states that: “To be entitled to benefits as a wife, husband, widow, or widower as the result of a deemed valid marriage, you and the insured must have been living in the same household ... at the time you apply for benefits.” The Commissioner argues that these provisions require plaintiff to have been living with John Fontana when she applied for benefits. This argument is without merit. The provisions relied on by the Commissioner apply only to applicants who would be entitled to benefits as a “wife, husband, widow, or widower,” not as a divorced spouse. Both Title 42 and the C.F.R. distinguish applicants who are entitled to “wife’s or husband’s benefits as a divorced spouse” from applicants who are entitled to wife’s, husband’s, widow’s, or widower’s benefits. See, e.g., 20 C.F.R. § 404.330 — 404.335; 42 U.S.C. § 416(a)-(h). A divorced spouse need not reside with her ex-husband at the time" }, { "docid": "4280509", "title": "", "text": "G. Eldin were again named as principal and contingent beneficiaries, respectively. Later the policy was converted into an endowment policy and Eleanor and Teresa were again named as principal and contingent beneficiaries. This policy was in force and effect at the time of decedent’s death. Conclusions of the Law. The issue presented under the law and facts is whether plaintiffs, being the de- . cedent’s first wife and the children born of the first marriage, are entitled to recover any of the proceeds of his National Service Life Insurance policy notwithstanding the fact that the defendant claiming to be the veteran’s wife by a subsequent marriage following a divorce and the child born as the result of the second marriage, were the designated beneficiaries of record of the insurance policy at the date of its maturity, the claim of the plaintiffs being based on the provisions of a separation agreement between the deceased and his first wife whereby he undertook to irrevocably name the first wife and their children as beneficiaries of the policy and based on the fact that unpaid monthly support and maintenance installments provided for in said agreement and in a subsequent divorce decree ratifying the agreement, constitute a debt collectible from the proceeds of the insurance. Upon maturity the proceeds of a National Service Life Insurance policy are payable to the designated beneficiary. There is no dispute that at the maturity date of the policy the defendant was and still is within the class of permitted beneficiary since the policy matured after August 1, 1946, and it is immaterial so far as the determination of this case is concerned whether the defendant Eleanor Eldin was or was not legally married to the veteran. At one time plaintiff was the designated beneficiary in the policy but plaintiff was not the designated beneficiary at the time the policy matured. It is the opinion of the Court that plaintiff lost all rights under the applicable Act and regulations when the veteran exercised his right in his lifetime in proper form and in accordance with law to change his beneficiary" }, { "docid": "3253040", "title": "", "text": "the law of an insured’s domicile.at the time of his death should govern. See also Grove v. Metropolitan Life Insurance Co., 271 F.2d 918 (4th Cir. 1959). This holding is appropriate here since California was not only Spearman’s domicile, but also he accepted Government employment in California and entered into the insurance contract while there. California law is in accord with the general rule which provides that a second marriage cannot be validly contracted if either spouse is then married. E. g., People v. Coronado, 57 Cal.App.2d 805, 135 P.2d 647 (1943); cf. Sohnlein v. Winchell, 230 Cal.App.2d 508, 41 Cal.Rptr. 145 (1964). In a contest between conflicting marriages under California law, once the first wife presents evidence that her marriage has not been dissolved, then the burden of persuasion shifts to the second wife to establish that her spouse’s marriage to his first wife had been dissolved. Otherwise, the first wife is deemed to have established her status as the lawful wife. According to the California rule, as in most states, the process of establishing which wife enjoys the status of lawful wife involves these shifting presumptions and burdens of persuasion: 1. Initially, when a person has contracted two successive marriages, a presumption arises in favor of the validity of the second marriage. Cal.Evid.Code § 663; Tatum v. Tatum, supra; Hunter v. Hunter, 111 Cal. 261, 43 P. 756 (1896); Vargas v. Superior Court, 9 Cal.App.3d 470, 88 Cal.Rptr. 281 (1970); Berg Estate, 225 Cal.App.2d 423, 37 Cal.Rptr. 538 (1964). Absent any contrary evidence, the second wife is deemed to be the lawful wife. 2. The presumption of validity accorded the second marriage is, however, merely a rule of evidence. It is a rebut-table presumption, the effect of which is to cast upon the first wife the burden of establishing the continuing validity of her marriage by demonstrating that it had not been dissolved by death, divorce, or annulment at the time of the second marriage. Cal.Evid.Code §§ 604, 606; Tatum v. Tatum, supra, 241 F.2d at 406, citing In re Smith’s Estate, 33 Cal.2d 279, 201 P.2d 539," }, { "docid": "17670355", "title": "", "text": "dissolve plaintiffs relationship with John Fontana. Even if a claimant cannot establish a valid marriage under state law, she may still be entitled to wife’s benefits based upon a “deemed valid marriage.” Under 20 C.F.R. § 404.346, a claimant is deemed to have been a wife if: in good faith, you went through a marriage ceremony with the insured that would have resulted in a valid marriage except for a legal impediment. A legal impediment includes only an impediment which results because a previous marriage had not ended at the time of the ceremony or because there was a defect in the procedure followed in connection with the intended marriage____ Good faith means that at the time of the ceremony you did not know that a legal impediment existed, or if you did know, you thought that it would not prevent a valid marriage. This provision tracks the language of 42 U.S.C. § 416(h)(l)(B)(i), which provides that: [when an] applicant is not the wife, divorced wife, widow, surviving divorced wife, husband, divorced husband, widower, or surviving divorced husband of [the insured], but it is established ... that such applicant in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage, then ... such purported marriage shall be deemed to be a valid marriage. Plaintiffs marriage to John Fontana would have been valid but for his prior marriage to Dora Fontana: The Administrative Law Judge determined that plaintiff went through a marriage ceremony with John Fontana in good faith, and the evidence in the record supports this conclusion. IV Section 416(h)(l)(B)(i) of Title 42 goes on to provide that: [I]n the case of any person who would be deemed ... a wife, widow, husband, or widower of the insured individual, such marriage shall not be deemed to be a valid marriage unless the applicant and the insured individual were living in the same household at the time of the death of" }, { "docid": "8450251", "title": "", "text": "presumption of change of relations, and without more such could not ripen into a common-law marriage.” This case was cited with approval by the Circuit Court of Appeals, Tenth Circuit, in Jones v. Kemp et al., 144 F.2d 478. There is yet another reason why the alleged common-law marriage between plaintiff and insured could not have been lawfully consummated on April 1, 1944. The insured obtained a divorce from Inez Bennett Branch on March 29, 1944, the decree providing that the divorce would not be absolute for a period of six months. In Thomas v. James et al., 69 Okl. 285, 171 P. 855, it was held: “It is unlawful for either of the parties to a divorce to marry any other person within six months after the granting of the divorce, but they are not prohibited by law from remarrying each other within such period, and their remarriage may be shown by facts from which a common-law marriage may be presumed.” The conclusion is inescapable that under the law of Oklahoma, which governed the marital status of the plaintiff, she was not the lawful wife of the insured on the date the policy went into effect, or on the 1st day of April, 1944, or on June 14, 1944, and is not within the class that would have an insurable interest in the life of the insured. John Branch, the other beneficiary named in the policy, now being deceased, it is clear that under the terms of the policy and the law governing the same the two minor children of the insured, James Branch and Anna M. Branch, are entitled to the unpaid balance of the proceeds of the policy. Their duly qualified guardian, Mary C. Pendergrass, is entitled to a judgment for the same to be paid in compliance with the provisions of the policy and the law governing the same. The judgment shall provide for attorneys’ fee of $500 to be paid to Howard K. Berry and Ted Foster, attorneys for the successful parties herein. Findings of fact, conclusions of law and a form of judgment consistent" }, { "docid": "3253042", "title": "", "text": "540 (1949); Hunter v. Hunter, supra; Vargas v. Superior Court, supra; Berg Estate, supra. 3. California formerly required the first wife to prove that her husband had not dissolved their marriage by showing that no record of either divorce or annulment existed in any jurisdiction in which the husband may have resided. See Nidever Estate, 181 Cal.App.2d 367, 5 Cal.Rptr 343 (1960). This strict burden has now been somewhat relaxed. The current rule is that, to rebut the presumption of validity inuring to the second or subsequent marriage, the first spouse need examine the records of only those jurisdictions in which either she or her husband have been in fact domiciled. See Goldberg Estate, 203 Cal.App.2d 402, 21 Cal.Rptr. 626 (1962). 4. If the first wife shows that an examination of the pertinent records of such jurisdictions and all of the available evidence demonstrate that her marriage remains undissolved, the burden of demonstrating the invalidity of the first marriage then shifts to the party asserting its invalidity, the second wife in this case. In re Smith’s Estate, supra. Unless the second wife then can establish that her husband’s first marriage has been dissolved, the first wife qualifies as the “lawful widow.” B. The Putative Spouse Doctrine Even if the second wife cannot qualify as the insured’s “widow,” she may nevertheless be entitled to one-half of the proceeds of the life insurance policy as insured’s “putative spouse.” cf. United States v. Robinson, 40 F.2d 14 (5th Cir. 1930); but see Tatum v. Tatum, supra. A putative spouse is one whose marriage is legally invalid but who has engaged in (1) a marriage ceremony or a solemnization, on the (2) good faith belief in the validity of the marriage. According to Estate of Foy, 109 Cal.App.2d 329, 240 P.2d 685 (1952), [t]he term “putative marriage” is applied to a matrimonial union which has been solemnized in due form and good faith on the part of one or of both of the parties but which by reason of some legal infirmity is either void or voidable. The essential basis of such marriage is" }, { "docid": "8658947", "title": "", "text": "marriage to the insured and failed to prove his right to recover the proceeds of the policy for the insured’s estate. The cases above cited do not appear to rest the presumption of the validity of the second marriage upon the statutory law of New York, nor has counsel for either party referred to the statutes. It is therefore hardly necessary for us to do so, but we may say in brief that the Domestic Relations Law of 1909, Consol. Laws, c. 14, tends to support the conclusion at which we have arrived. Section 6 thereof declares: “A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless * * * 3. Such husband or wife has absented himself or herself for five successive years then last past without being known to such person to be living during that time.” Section 7, however, makes such a marriage “void from the time its nullity is declared by a court. * * * ” Thus it appears that Hilda’s marriage to Lester Hatfield was not void but at most voidable at the date of his death on January 17, 1920. See Price v. Price, 124 N. Y. 589, 27 N.E. 383, 12 L.R.A. 359, dealing with a similar earlier statute. By an amendment (Chap. 279, Laws of 1922) sections 6 and 7 of the Domestic Relations Law were amended to declare absolutely void a marriage contracted by a person whose husband or wife by a former marriage is living unless such former mar riage has been dissolved pursuant to section 7-a. But this legislation does not operate retroactively. Atkinson v. Atkinson, 207 App.Div. 660, 203 N.Y.S. 49. On the record made by the plaintiff Hilda Freeman was proved to be the widow of the insured and the lawfully designated beneficiary of his insurance. It is true she was made a party to the plaintiff’s suit, was served by publication and defaulted. But the abandonment by default of her rights to the insurance (assuming they were not barred by limitation) does not entitle" }, { "docid": "3253046", "title": "", "text": "spouse” believed in good faith that she had a valid marriage, then it is presumed that she contributed one-half of the premiums and is therefore entitled to one-half of the proceeds. The Decision Applying these rules to the facts before it, the District Court first looked to the law of Alabama and concluded that Mary, the first wife, was validly married in Alabama in 1946. The subsequent marriage to Viva in 1962 in California was valid under California law, unless there was a preexisting marriage. At this point, the presumption in favor of the most recent marriage to Viva required Mary to show that her marriage had not been dissolved or annulled at the time of the insured’s marriage to Viva. This showing she successfully made' by establishing that no petition for annulment or divorce had been filed, by either herself or the insured, in any of their known domiciles since 1946, including Columbus, Georgia, Phenix City, Alabama, and Monterey, California. See Tatum v. Tatum, supra; Hunter v. Hunter, supra; Vargas v. Superior Court, supra; Berg Estate, supra; Goldberg Estate, supra. After Mary had rebutted the presumption of validity initially attaching to Viva’s marriage, the burden of persuasion shifted to Viva. See In re Smith’s Estate, supra. This burden failed for want of proof: Viva introduced no credible evidence that either Mary or the insured had ever been a party to any legal proceeding that had annulled or dissolved their marriage. The District Court then correctly ruled that Mary had established the continuing validity of her marriage to the insured and that Viva had failed to establish otherwise. Having failed to prove her claim as insured’s “widow” under the policy of life insurance, Viva then pursued the theory that, as the insured’s “putative spouse,” she was entitled to one-half of the proceeds of the life insurance policy. The District Court found that Viva could not qualify as the insured’s “putative spouse” because she could not meet the requirement of a good faith belief in the existence of a valid marriage. This finding is not clearly erroneous, and must remain undisturbed" }, { "docid": "19722761", "title": "", "text": "decide your relationship to the insured, we look first to state laws. If your relationship cannot be established under state law, you may still be eligible for benefits if your relationship as the insured’s widow is based upon a “deemed valid marriage” as described in the Act. Therefore, we must look to the laws of Puerto Rico to determine whether the courts of Puerto Rico will consider plaintiff to be the legal widow of the wager earner. Article 68 of the Civil Code of Puerto Rico states that marriage is a civil institution, originating in a civil contract, whereby a man and a woman mutually agree to become husband and wife and to discharge towards each other the duties imposed by law. It is valid only when contracted and solemnized in accordance with the provisions of law; and it may be dissolved before the death of either party only in the cases expressly provided for in this title. Article 69 of the Civil Code also provides that the requisites for the validity of a marriage are: The legal capacity of the contracting parties ... Article 70 of the Civil Code states that the following persons are incapacitated to contract marriage: One who is already legally married ... Article 909 of the Civil Code provides that in default of brothers and nephews, the surviving spouse shall succeed to all the property of the descendant, whether or not the sisters and nephews be of the whole blood or the half blood. In the case at bar, there is substantial evidence to establish that at the time of the wage earner’s death, he was still legally married to Angela Morales and that Angela Morales was the widow of Serafín Baez for purposes of widow’s insurance benefits under the Act. Plaintiff first claims as error in the decision of the Secretary, that the first marriage to Angela Morales was also null and void because, at the time the marriage was celebrated, she was incapacitated to contract marriage because of age. Article 70 of the Civil Code provides, in part, that a person of the" }, { "docid": "20988412", "title": "", "text": "Leflar, The Law of Conflict of Laws, 1959, § 179, p. 344. However, for reasons to be stated the Examiner came to the conclusion that the Texas legitimation statute was not applicable to William B. Lester, Jr., and that he would be considered illegitimate under both Texas and Arkansas law, and hence was not entitled to Child’s Insurance Benefits. In seeking to reverse the Examiner plaintiff contends that on March 1, 1959, she and Mr. Lester formed in Texas a relationship which under the laws of that State would have been a valid common law marriage except for the existence of the impediment consisting of Mr. Lester’s prior undissolved marriage; that the dissolution of the marriage by the decree of the Arkansas Chancery Court removed the impediment; that she and Mr. Lester continued to live together as husband and wife after the removal of the impediment, and that by reason of such continued cohabitation a valid common law marriage came into existence in Texas, notwithstanding the fact that neither of the parties knew that the impediment had been removed. Prom these premises plaintiff argues that under Texas law the first child became legitimate when the allegedly valid common law marital status of his parents came into existence, that the second child was born legitimate, and that both children were entitled to inherit from their father under Arkansas law, and were and are entitled to Child’s Insurance Benefits under the Act. Under the express provisions of section 205(g) of the Social Security Act the factual findings of the agency are final and binding upon the courts if such findings have substantial evidentiary support in the record considered as a whole, and this finality extends to permissible inferences drawn from the evidence by the administrative fact finder. Celebrezze v. Bolas, 8 Cir., 316 F.2d 498; Hoffman v. Ribicoff, 8 Cir., 305 F.2d 1; Cody v. Ribicoff, 8 Cir., 289 F.2d 394, 88 A.L.R. 970. No such finality attaches to the agency’s conclusions of law, and, as this Court has said in Lewis v. Flemming, E.D.Ark., 176 F.Supp. 872, 874, a finding or" }, { "docid": "13300189", "title": "", "text": "home in Louisiana. The Court of Civil Appeals concluded that “their temporary sojourn in the states recognizing common-law marriages did not convert their illegal relations into a lawful marriage.” [300 S.W. 982.] Thereafter, the decedent deserted plaintiff and she then legally wed another man. She in turn abandoned her husband five years later, returning to the decedent in Texas to establish residence as husband and wife. They lived there together from October, 1925 to January, 1926 when the decedent died. Unbeknownst to them, claimant’s ceremonial spouse had died on Thanksgiving Day of 1925. The court found no new agreement to have been made, but held that “sound public policy impels the law to infer consent ‘to have been given at the first moment when the parties were able to enter into the contract.’ ” In affirming the decision, the Commission of Appeals disapproved of the rationale contained in the above quote, holding instead^ that “we do agree that the facts as found authorized an inference of fact as to matrimonial intent at a time when no legal impediment existed.” [15 S.W.2d 230.] The court went on to state, and we quote from an excerpt incorporated and expressly approved in the subsequent Curtin case: “It is undoubtedly true that the agreement for marriage, * * * so long as the legal impediment existed, was of no effect. The con-I summation of the marriage, however, cannot be denied for the want of agreement, but must be denied because of the legal impediment which prevented its consummation. * * * So here the facts showing that, after Brown’s death, the parties continued their relations deporting themselves as husband and wife and considering themselves such, are sufficient to prove as a matter of fact that they intended their relations to be marital, and since there then existed no legal impediment, their agreement and relations were valid and lawful. Their continued living together as husband and wife after the removal of the impediment bespeaks a continued intention and agreement, day by day, to be husband and wife, # * * » The Curtin case itself" }, { "docid": "8658944", "title": "", "text": "in 1910 she married Alfred G. Freeman with whom she lived for one month, when he abandoned her; she had not heard from him since; there was no divorce and no children; in April 1918 she married the insured and after his death was married to one McGrude. There were also introduced by the plaintiff copies of the marriage license issued to Lester Hatfield and Hilda Prentiss and the certificate and record of their marriage on April 13, 1918; and a certificate by the assistant registrar that a search of the records of death in the Borough of the Bronx from 1911 to 1918 did not disclose the name of Alfred G. Freeman. It also appeared that letters of administration were issued to Hilda Hatfield by the Surrogate of Westchester County on August 12, 1920, and that she was removed as such administratrix in favor of the decedent’s brother Howard on August 4, 1937. The plaintiff had the burden of proving that the beneficiary named in the policy was not within the permitted class of beneficiaries, that is, that Hilda was not the legal wife of the insured. Only in that event was the plaintiff, as administrator of the veteran’s estate, entitled to the proceeds of his insurance. 38 U.S.C.A. § 514. Since Hilda’s first husband, Freeman, deserted her, he would not have been likely to communicate with her; consequently under New York law his absence for more than seven years without being heard from would raise no presumption that he was dead before her second marriage. Butler v. Mutual Life Ins. Co., 225 N.Y. 197, 203, 121 N.E. 758. But there is a presumption which does aid the appellant, namely, the presumption of the legality of a marriage formally celebrated. Matter of Dugro’s Will, 261 App.Div. 236, 25 N.Y.S.2d 88, affirmed 287 N.Y. 51, 38 N.E.2d 706; Schouler, Marriage and Divorce, 6th Ed., § 1252. This presumption is not overcome by proof of a prior marriage, even when the second marriage occurs during the life of the first husband. Matter of Dugro’s Will, supra; Matter of Meehan’s Estate, 150" }, { "docid": "8658948", "title": "", "text": "that Hilda’s marriage to Lester Hatfield was not void but at most voidable at the date of his death on January 17, 1920. See Price v. Price, 124 N. Y. 589, 27 N.E. 383, 12 L.R.A. 359, dealing with a similar earlier statute. By an amendment (Chap. 279, Laws of 1922) sections 6 and 7 of the Domestic Relations Law were amended to declare absolutely void a marriage contracted by a person whose husband or wife by a former marriage is living unless such former mar riage has been dissolved pursuant to section 7-a. But this legislation does not operate retroactively. Atkinson v. Atkinson, 207 App.Div. 660, 203 N.Y.S. 49. On the record made by the plaintiff Hilda Freeman was proved to be the widow of the insured and the lawfully designated beneficiary of his insurance. It is true she was made a party to the plaintiff’s suit, was served by publication and defaulted. But the abandonment by default of her rights to the insurance (assuming they were not barred by limitation) does not entitle the plaintiff to judgment against the defendant. Cf. Live Stock Nat. Bank v. United States, 7 Cir., 106 F.2d 240; Live Stock Nat. Bank v. United States, 7 Cir., 122 F.2d 179. The administrator must recover in his own right. This he could not do without disproving the validity of Hilda’s marl iage to the insured. In that he failed completely. There was no evidence which would have justified the jury in finding the marriage illegal. Accordingly the defendant’s motion for a directed verdict should have been granted and the plaintiff’s denied. The judgment in favor of the veteran’s administrator is reversed and the action dismissed as to him. In his brief it is stated that after entry of judgment the impleaded defendant, Hilda Hatfield, appeared under the name of Hilda Creighton and moved to open her default and to vacate the judgment for the plaintiff, which motion was denied without prejudice to renewal. We express no opinion as to whether she has any rights in this action or whether it is too late for" }, { "docid": "11230147", "title": "", "text": "duty September 23, 1941, without having insurance in force with the Government at the time of his death. The Government, in its answer, denied appellant’s allegation that she was unremarried, and as an affirmative defense alleged “that the plaintiff, Mrs. Genevieve Rittgers, lived with, held herself out as, represented herself to be and conducted herself as the wife of Gerald Stump while residing, among other places, at Apartment 4, 2521 Portland Avenue, Minneapolis, Minnesota. Having thus maintained the relationship which usually exists between husband and wife with said Gerald Stump, and having claimed and received 'from the community in which she resides, and from her friends and acquaintances the recognition afforded a married woman, presumably married in accordance with statutory requirements of the jurisdiction in which she lived, the plaintiff, by law, is es-topped to deny that she has remarried since the insured’s death for the purpose of asserting any right, title or interest as his unremarried widow, to any benefits of National Service Life Insurance which may be payable on account of his death.” This portion of the answer was stricken on the ground that the facts alleged did not constitute a marriage under the laws of Minnesota. The case was tried to a jury on the sole issue of whether plaintiff had remained the unremarried widow of Claude A. Rittgers. There was submitted to the jury a special interrogatory as follows: “Did the plaintiff and Gerald Stump enter into a valid csffimon law marriage in the State of Iowa on or before May 15, 1942?” At the close of all the testimony plaintiff moved for a directed verdict, which motion was denied, and the case was submitted to the jury on instructions to which neither party saved any exceptions. The jury having by its verdict found that plaintiff and Gerald Stump entered into a common law marriage in the State of Iowa on or before May 15, 1942, plaintiff moved for judgment notwithstanding the verdict or for a new trial, which motion was denied, and the court thereupon entered judgment dismissing plaintiff’s action on its merits, from which" }, { "docid": "2660993", "title": "", "text": "entitled to a widow’s insurance benefit . . . .” 42 U.S.C. § 402(e)(1)- In determining family status, Congress intended the Secretary to apply state law: An applicant is the . widow of a fully or currently insured individual for the purposes of this sub-chapter if the courts of the State in which such insured individual [was] domiciled ... at the time of death . would find that such applicant and such insured individual were validly married . at the time he died. 42 U.S.C. § 416(h)(1)(A). Because Adam Chlystek was domiciled in Pennsylvania at the time of his death, our task is to predict whether the courts of that state would find him for this purpose to have been validly married to Helen Chlystek. In determining that Adam Chlystek and Helen Chlystek were not legally married, the district court considered itself bound by Warrenberger v. Folsom, 239 F.2d 846 (3d Cir. 1956). There, in a factually similar case, we considered whether the claimant was entitled to. benefits under 42 U.S.C. § 402 as the wage earner’s widow. The claimant was precluded from effecting a valid marriage with the wage earner solely by the operation of section 169. The state court had granted the claimant’s first husband a divorce on the ground of adultery, naming the wage earner as the corespondent. Three years later, the claimant went through a ceremonial marriage with the wage earner. We held that section 169 rendered the second marriage invalid and denied widow’s benefits to the claimant. Our decision in Warrenberger, however, rested on the Pennsylvania Supreme Court’s interpretation of section 169 in In re Stull’s Estate, 183 Pa. 625, 39 A. 16 (1898). The decedent in Stull had been divorced in Pennsylvania by his former wife on the ground of adultery with the plaintiff. The plaintiff and the decedent were ceremonially married in Maryland, and then returned to Pennsylvania where they lived as man and wife. On the decedent’s death, the plaintiff claimed that as his widow, she was entitled to the letters of administration of his estate. The court held that the paramour" } ]

[ { "docid": "12750359", "title": "", "text": "reinstatement was not within the power of the Board. Respondent complains also of the action of the trial examiner in refusing, on its motion, to order a separation of witnesses or, in the language of the old cases, “to put the witnesses under the rule”. It is well settled in courts of law that, whether witnesses are to be separated or “put under the rule”, is a matter resting in the sound discretion of the trial court. Parker v. State, 67 Md. 329, 10 A. 219, 1 Am.St.Rep. 387; Lee v. Thornton, 174 N.C. 288, 93 S.E. 788; McGuff v. State, 88 Ala. 147, 7 So. 35, 16 Am.St.Rep. 25; Sanders v. Johnson, 6 Blackf., Ind., 50, 36 Am.Dec. 564; Roberts v. State, 100 Neb. 199, 158 N.W. 930, Ann. Cas.l917E, 1040; Squires v. State, 39 Tex. Cr.R. 96, 45 S.W. 147, 73 Am.St.Rep. 904. Cf. Hughes v. State, 126 Tenn. 40, 148 S.W. 543, Ann.Cas.l913D, 1262 ; 26 R.C.L. 1058; 64 C.J. 118. The same rule, we think, should be applied to hearings before the Board or its examiners. Respondent acquiesced in the order of the Board by posting a notice to its employees in which it agreed to abide by the provisions of the order. It is not necessary to decide whether or not this is an acceptance of the order which precludes respondent from contesting its provisions, since we are of opinion that, independently of the posting, there is ample evidence to support it. It is not amiss to note, however, that our decree enforcing the order means no more than that we require respondent to do what in the notice it agreed to do and published to its employees and to the world that it intended to do. It should not object to carrying out its agreement thus publicly proclaimed. Order enforced." } ]

[ { "docid": "16825359", "title": "", "text": "Bradford Dyeing Ass’n, 1940, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226; cf. N.L.R.B. v. Clinton E. Hobbs Co, 1 Cir., 1942, 132 F.2d 249; N.L.R.B. v. Medo Photo Supply Corp., 2 Cir., 1943, 135 F.2d 279; Oughton v. N.L.R.B, 3 Cir., 1941, 118 F.2d 486; N.L.R.B. v. Whittier Mills Co, 5 Cir., 1940, 111 F.2d 474; N.L.R.B. v. Burke Machine Tool Co., 6 Cir, 1943, 133 F.2d 618; N.L.R.B. v. Chicago Apparatus Co, 7 Cir., 1940, 116 F.2d 753; Bussmann Mfg. Co. v. N.L.R.B, 8 Cir, 1940, 111 F.2d 783; N.L.R.B. v. Biles Coleman Lumber Co, 9 Cir., 1938, 96 F.2d 197; Continental Oil Co. v. N.L.R.B., 10 Cir., 1940, 113 F.2d 473; N.L.R.B. v. Porcelain Steels, 6 Cir, 138 F.2d 840, decided Nov. 30, 1943. While it is true that the loss of majority in the instant case occurred, not among the employees composing the original working force of the Company, but rather among the changed personnel composed largely of new employees who replaced the discharged employees, the principle that the union is entitled to a reasonable presumption of the continuity of its majority status and an employer may not profit by its own wrongdoing is nonetheless applicable. The failure of the Company to take the curative action dictated by us necessarily must have had a telling impact on the new employees. Indeed, had the Company acted lawfully and obeyed the command of our decree by recognizing and bargaining with the Union, the Union probably would have recruited in its ranks' a proportionate share of adherents from the new employees. As was stated in N.L.R.B. v. Franks Bros. Co., 1 Cir., 1943, 137 F.2d 989, 994: “It appears in the case before us that the loss of a majority was due to a voluntary quitting on the part of certain employees of respondent. * * * The respondent’s dilatory tactics, its refusal to recognize the^union as a bargaining representative, and its campaign against the union deprived it of the opportunity of strengthening its organization. It demonstrated the union’s inability to reach an agreement with the employer with" }, { "docid": "15555778", "title": "", "text": "motivated by the unfair labor practices of the Company. SEQUESTRATION OF WITNESSES At the hearing before the administrative law judge the Company requested that general counsel’s witnesses be sequestered in accordance with Federal Rule of Evidence 615. The administrative law judge refused to sequester witnesses who were alleged to have been discriminated against. The Company asserts that the failure to sequester witnesses resulted in prejudice. During oral argument counsel for the Company indicated that the Company was prejudiced both by the cumulative effect of the testimony on the administrative law judge and because the Company’s ability to elicit contradictory testimony from the witnesses was severely limited. Section 10(b) of the act requires that hearings be conducted, so far as practicable, in accordance with the rules of evidence used in federal district courts. In NLRB v. Stark, 525 F.2d 422 (2nd Cir. 1975) cert. denied 424 U.S. 967, 96 S.Ct. 1463, 47 L.Ed. 734 (1976) the second circuit held that the ALJ should have the authority to sequester the alleged discriminatees and failure to have exercised that discretion in favor of sequestration would have been an abuse of discretion. Both the second and fourth circuits have recognized “that sequestration is ‘a simple and time-tested method for helping to discover the truth [which should] rank high in a list of evidentiary doctrines which courts, under § 10(b), should enforce upon the NLRB.’ ” L. S. Ayres & Company v. NLRB, 551 F.2d 586, 588 (4th Cir. 1977), citing NLRB v. Stark, supra at 427. We agree. There should be every effort made to ensure that the adverse party has the opportunity to develop any unfavorable or-inconsistent testimony. New rule 615 makes sequestration a matter of right. We find no reported cases determining the extent to which the new rule is applicable to board proceedings. In Sturgis Newport Business Forms, Inc. v. NLRB, 563 F.2d 1252 (5th Cir. 1977), this court found that since no prejudice resulted from the failure of the administrative law judge to sequester the witnesses, a decision as to the application of the new rule in board proceedings was" }, { "docid": "441291", "title": "", "text": "20, 73 S.Ct. 85, 87, 97 L.Ed. 15 (1952). At that point, our only recourse is to remand to the Board for reconsideration in light of our holding. “Application of that general principle in this case best respects the congressional scheme investing the Board and not the courts with broad powers to fashion remedies that will effectuate national labor policy.” N.L.R.B. v. Food Store Employees, 417 U.S. 1, 10, 94 S.Ct. 2074, 2080, 40 L.Ed.2d 612 (1974). See also, South Prairie Construction Co. v. Local 627, Intern. Union of Operating Engineers, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976) (per curiam). “For purposes of affirming no less than reversing its orders, an appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency.” Securities Comm’n. v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943). The petition for review is granted. The cross-application for enforcement is denied. The cause is remanded for proceedings consistent with this opinion. IT IS SO ORDERED. . The bargaining unit certified consists of: INCLUDED: All full-time and regular part-time registered nurses, including in-service education nurses, cardiovascular specialists, diabetic stroke technicians, hyper-elementation nurse clinician, float pool nurses, certified anesthetists, and all other registered nursing employees at the St. Luke’s facility of the employer located at 601 E. 19th Avenue in Denver, Colorado EXCLUDED: Unit supervisors, assistant unit supervisors, department directors, assistant department directors, patient representatives and other supervisory and managerial employees, and guards as defined in the Act and all other employees of the above facility. . It is settled that “an employer may secure judicial review of a unit determination by simply refusing to bargain with a union after its certification.” Osteopathic Hospital Founders Asso. v. NLRB, 618 F.2d 633, 640 (10th Cir. 1980). By our reference to Extendicare, we do not necessarily approve of all of the holdings of that decision. . To the extent that N.L.R.B. v. Tahoe Nugget, Inc., 584 F.2d 293 (9th Cir. 1978), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 290 (1979) is contrary, we" }, { "docid": "11016252", "title": "", "text": "further dealt with in the courts, as provided for by the Labor Act, or that moneys appropriated for the current fiscal year cannot be used in connection with enforcement or review petitions in the courts. There is nothing to indicate that the purposes of the rider would be effectuated by the inclusion of court proceedings within its scope. Certainly there is nothing to indicate that proceedings pending in a federal court at the time of passage of the Appropriation Act, as was the case of the instant proceeding, should fall within the terms of the rider. N.L.R.B. v. Elvine Knitting Mills, Inc., 2 Cir., 138 F.2d 633, 634. It is urged that the Board abused its power in failing to dismiss the complaint against respondent under the doctrine of laches since approximately five years had elapsed between the formation of the Alliance and the filing of the charge with the Board alleging company-domination. The timeliness of a charge is a matter within the Board’s discretion, and its failure to dismiss a complaint based on charges filed long after the occurrences complained of without pointing out the unfair effect of the delay cannot be held to be an abuse of its discretion. Respondent contends that the trial examiner, upon whose findings of fact and conclusions of law the Board’s order was based, clearly favored the Board throughout the hearing before him and consequently that respondent did not receive a fair hearing and was denied due process of law. Our examination of the record discloses no attitude of partiality and prejudice on the part of the trial examiner. It exhibits nothing analogous to the procedure condemned in the cases cited by respondent— N.L.R.B. v. Washington Dehydrated Food Co., 9 Cir., 118 F.2d 980, and Inland Steel Co. v. N.L.R.B., 7 Cir., 109 F.2d 9—which would justify a conclusion that respondent had been denied a fair trial. Respondent argues that the testimony of two witnesses is “utterly worthless” on the ground of their apparent hostility toward respondent and the numerous contradictions and inconsistencies in their stories. Respondent then points out that the finding" }, { "docid": "4806969", "title": "", "text": "efficient manner possible. To assure that the Agency will be able to meet its obligations to the public to the greatest extent possible, the Board has decided to temporarily delegate to the General Counsel full authority on all court litigation matters that would otherwise require Board authorization.... This delegation shall be effective during any time at which the Board has fewer than three Members and is made under the authority granted to the Board under sections 3, 4, 6, and 10 of the [N.L.R.A.]. Accordingly, the Board delegates to the General Counsel full and final authority and responsibility on behalf of the Board to initiate and prosecute injunction proceedings under section 10(j) N.L.R.B. — Order Contingently Delegating Authority to the General Counsel, 76 Fed. Reg. 69768, 697768 (Nov. 9, 2011) (emphasis added). Renaissance argues that the Board cannot delegate its § 10(j) powers to the General Counsel and that, even if it could, this particular delegation is invalid because it does not take effect until the Board’s membership falls below a quorum. Renaissance further argues that this Court must decide the constitutional issue regardless of whether the Board validly delegated its § 10(j) powers to the General Counsel. DISCUSSION I. In 1947, Congress passed the Labor Management Relations Act (popularly known as the Tafk-Hartley Act), which amended the N.L.R.A. See Pub.L. No. 80-101, § 3(a)-(b), 61 Stat. 136, 139 (1947). The purpose of the Taft-Hartley Act (the “Act”) was to expand the N.L.R.B. and structure the agency in a way that separated its prosecutorial functions from its adjudicative functions. See NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 117-118, 108 S.Ct. 413, 98 L.Ed.2d 429 (1987). To achieve these ends, the Taft-Hartley Act established the position of General Counsel for the N.L.R.B.; increased the size of the Board from three members to five; increased the Board’s quorum requirement from two to three; and allowed the Board to adjudicate cases in panels by delegating its authority to three-member groups empowered to act with a quorum of two members. See 29 U.S.C. § 153(b). The Tafk-Hartley Act" }, { "docid": "12198770", "title": "", "text": "(1967), cited by the Board, as not determinative, although it is important for its emphasis that the Board’s judgment and determination in these “unit” cases will turn peculiarly upon the facts of the particular case. The company’s evidentiary point is without merit. Acceptance of testimonial evidence of employees’ personal desires would be inconsistent with the statutory policy expressed in Section 9(e) (1), which forbids certifications not based on secret ballot elections. The possibility of undue pressure on employees, through fear of reprisals, to testify one way or the other is not to be discounted. Certainly giving weight to such employee testimony provides a precarious basis for fact-finding. Compare Radio Officers’ Union v. N.L.R.B., 347 U.S. 17, 51, 74 S.Ct. 323, 98 L.Ed. 455 (1954); Joy Silk Mills v. N.L.R.B., 87 U.S.App. D.C. 360, 372, 185 F.2d 732, 744 (1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951). To the extent that N.L.R.B. v. Ideal Laundry and Dry Cleaning Co., 10 Cir., 330 F.2d 712, 717-718 (1964), relied on by the company, appears to indicate otherwise, we respectfully disagree. IV In their petition for additional relief, the unions ask the Board to order that any collective bargaining agreement ultimately negotiated by the parties be made retroactive to the date when the company first refused to bargain. The unions argue that this relief is necessary, not only to make the employees whole, but also to discourage dilatory litigation. They rely on two recent studies to show that the tactic of delay not only tends to demoralize the employees but also dissipates their enthusiasm for collective bargaining. Ross, Analysis of Administrative Process Under Taft-Hartley, 63 Lab. Rel. Rep. 132, 136 (BNA 1966); Note, The Need for Creative Orders Under Section 10(c) of the National Labor Relations Act, 112 U.Pa.L.Rev. 69, 86-87 (1963). The unions, quoting the Board, assert: “It is axiomatic that remedial action, if it is to afford an effective redress for the commission of a statutory wrong, must be tailored to restore the wronged to the position he would have occupied but for the action of the" }, { "docid": "1973154", "title": "", "text": "the doctrine enunciated in Miranda Fuel Co., 140 NLRB 181 (1962), enforcement denied, 326 F.2d 172 (2d Cir.1963), and that this doctrine is no longer viable. Before reaching this “merits” issue, we must consider the contention of the Board that the issue is not properly before this court since the contention that “Miranda Fuel is dead” was not presented to the Board and since there were no special circumstances excusing Local 705’s failure to give the Board an opportunity to pass on this question, citing section 10(e) of the Act, 29 U.S.C. § 160(e), as precluding this court’s consideration. The present matter, of course, is before the court pursuant to section 10(f) rather than 10(e). We are of the opinion that there is jurisdictional equivalence between the two sections in view of the references in section 10(f) to conducting proceedings in the same manner and to making and entering decrees in a like manner. The union in response to the Board’s first line of argument relies in part upon the fact that when it sought to intervene in Kesner’s review proceedings the Board objected stating that if the union desired review of the Board’s decision adverse to it, “it may employ the simple expedient of filing a petition to review under section 10(f) of the Act.” We are not persuaded that the Board’s prior suggestion that Local 705 file a § 10(f) petition precludes the Board from now challenging the union’s right to attack the Board’s order on any legal basis it chooses. The suggestion scarcely invokes the application of waiver or estoppel concepts. See Marshall Field & Co. v. N.L.R.B., 318 U.S. 253, 256, 63 S.Ct. 585, 586, 87 L.Ed. 744, 746 (1943). The relevant portion of the cross-referenced section 10(e) provides: No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. Under applicable Board rules, “[a]ny exception to a ruling, finding, conclusion, or recommendation which is not specifically urged shall be" }, { "docid": "15555779", "title": "", "text": "that discretion in favor of sequestration would have been an abuse of discretion. Both the second and fourth circuits have recognized “that sequestration is ‘a simple and time-tested method for helping to discover the truth [which should] rank high in a list of evidentiary doctrines which courts, under § 10(b), should enforce upon the NLRB.’ ” L. S. Ayres & Company v. NLRB, 551 F.2d 586, 588 (4th Cir. 1977), citing NLRB v. Stark, supra at 427. We agree. There should be every effort made to ensure that the adverse party has the opportunity to develop any unfavorable or-inconsistent testimony. New rule 615 makes sequestration a matter of right. We find no reported cases determining the extent to which the new rule is applicable to board proceedings. In Sturgis Newport Business Forms, Inc. v. NLRB, 563 F.2d 1252 (5th Cir. 1977), this court found that since no prejudice resulted from the failure of the administrative law judge to sequester the witnesses, a decision as to the application of the new rule in board proceedings was there unnecessary. As in Sturgis we find that the absence of prejudice to the Company from such failure is clear from the record as a whole. Its argument that it suffered denial of due process of law as a product of the refusal to sequester witnesses is therefore without merit. APPROPRIATENESS OF THE REMEDY Based upon the findings that the strike was caused by unfair labor practices of the Company, the board ordered reinstatement of the strikers with back pay. The Company contends that the policy of automatically requiring immediate reinstatement to unfair labor practice strikers should not be followed in this case. The Company would have us reevaluate the conflicting rights of an employer to hire permanent replacements with the employees’ right to strike. We have long recognized, however, that unfair labor practice strikers are entitled to immediate reinstatement even if permanent replacements have been hired. Mastro Plastics Corp. v. NLRB, supra; National Fresh Fruit & Vegetable Co. v. NLRB, 565 F.2d 1331 (5th Cir. 1978). We do not agree that the present situation" }, { "docid": "6469162", "title": "", "text": "on substantive matters contemplated by § 4 of the Administrative Procedure Act, 5 U.S.C. § 553. In a memorandum dated February 12, 1973, counsel advised us that the Board has recently concluded one such proceeding by promulgating a standard for the exercise of jurisdiction over private colleges and universities, 35 Fed. Beg. 18370 (1970) and 29 C.F.B. § 103.1. Also in the summer of 1972 the Board published notices of proposed rule-making on the questions whether to assert jurisdiction over the horseracing and dogracing industries and over symphony orchestras and, if so, what the standard should be. 37 Fed.Beg. 14242, 16813. , While nominally this comes before us as an unfair labor practice case, in substance the attack is on the Board’s decision, unreviewable at the time, in the representation proceeding. . Although Swift & Co., 115 N.L.R.B. 752 (1956), may be the only case in which the Board had squarely held that buyers were not entitled to organize in a union separate from rank-and-file employees, the reasoning of the many decisions in fn. 11 necessarily led to that result so long as the Board classified almost all buyers ns “managerial employees.” A number of the decisions that have upheld the Board’s reversing prior decisions in adjudicative proceedings have been in situations where the Board has merely prescribed a stricter remedy. See, e. g., NLRB v. A.P.W. Products Co., 316 F.2d 899, 905 (2 Cir. 1963) (retroactively overruling decisions that back pay awards are tolled by examiner’s finding of non-violation); cf. International Union of Elec., Radio and Mach. Workers, 138 U.S.App.D.C. 249, 426 F.2d 1243, cert. denied, Tiidee Products Inc. v. International Union of Elec., Radio and Mach. Workers, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970); H. & F. Binch Co. Plant of Native Laces v. NLRB, 456 F.2d 357, 364-365 (2 Cir. 1972) (enlarging reinstatement rights of economic strikers). . In the Binch case, supra note 16, we sustained retroactive application of the Board’s decision in The Laidlaw Corporation, 171 N.L.R.B. No. 172 (1968), enforced, 414 F.2d 99 (7 Cir. 1969), cert. denied, 397 U.S. 920," }, { "docid": "14286126", "title": "", "text": "because the legislature has not delegated to it the power to promulgate them. 7. To the extent that the legislature has delegated to the board the power to make the rules, that delegation is illegal under the Georgia Constitution. We find that plaintiffs are correct in their first challenge, that the procedure employed deprives them of their right to an impartial tribunal. We also find, however, that the rules themselves are a valid exercise of the board’s power over the optometry profession in Georgia, and that plaintiffs’ other constitutional claims are without merit. It is one of the mainstays of our system of laws that a state cannot affect a person’s personal or property rights except after a hearing before a fair and impartial tribunal. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L. Ed.2d 556 (1972). In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955); Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921). A fair and impartial tribunal requires at least that the trier of fact be disinterested. Turney v. Ohio, 273 U.S. 5Í0, 47 S.Ct. 437, 71 L.Ed. 749 (1927), and that he also be free from any form of bias or predisposition regarding the outcome of the case, Pillsbury Co. v. FTC, 354 F.2d 952 (5th Cir. 1966); N.L.R.B. v. Phelps, 136 F.2d 562 (5th Cir. 1943). Not only must the procedures be fair, “the very appearance of complete fairness” must also be present. Amos Treat & Co. v. SEC, 113 U.S.App.D.C. 100, 306 F.2d 260, 267 (1962). These principles apply not only to trials, but equally, if not more so, to administrative proceedings. Ohio Bell Telephone Company v. Public Utilities Com’n., 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 (1937); N.L.R.B. v. Phelps, supra, Jaffe and Nathanson, Administrative Law, 3rd Ed. (1968), 955 et seq. Plaintiffs argue that the defendant board members should not be allowed to participate in the determination of whether they have engaged in unprofessional conduct, because the defendants would tend to benefit from a determination that they have engaged" }, { "docid": "11986529", "title": "", "text": "remains whether we should order a new hearing to determine the truth of respondents’ view that the union was seeking, by its unfair labor practice charge, to revoke the wage increase obtained by the efforts of another group of employees until it could be the negotiator, or whether the Board’s position is untenable in any event. We believe the latter. The Board’s decision was reached without any apparent consideration of three important matters. First, with respect to its finding that the notice interfered with a free election, we ask what has become of the Board’s familiar rule that prejudice depends upon lack of opportunity to reply in time. Ralston Purina Co., 1964, 147 N.L.R.B. 506; Pepperell Mfg. Co. v. NLRB, 5 Cir., 1968, 403 F.2d 520. On October 27 no election was even scheduled. Next we ask what has become of the companion rule that prejudice depends upon the ability of the replying party effectively to rebut the substance of the misrepresentation. See Celanese Corp., 1958, 121 N.L.R.B. 303, 307, enforcement denied 7 Cir., 279 F.2d 204, vacated and remanded per curiam 365 U.S. 297, 81 S.Ct. 689, 5 L.Ed.2d 688, enforcement denied 291 F.2d 224, cert. denied 368 U.S. 925, 82 S.Ct. 360, 7 L.Ed.2d 189; United Steelworkers v. NLRB, D.C.Cir., 1968, 393 F.2d 661, 664; NLRB v. Trancoa Chem. Corp., 1 Cir., 1962, 303 F.2d 456, 3 A.L.R.2d 879. See, in general, Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L.Rev. 38, 82-91 (1964). We find it difficult to imagine a misrepresentation, if it was such, that could be more quickly, or more effectively, answered. All the union needed to d° was publish a statement that respondents had misdescribed its position and that it was not seeking to nullify the wage increase. It has been well said in such event, “[t]he remedy is for the union to answer them, not a cease and desist order.” NLRB v. TRW-Semiconductors, Inc., 9 Cir., 1967, 385 F.2d 753, 760. So far as we can discover, the Board has never held that a statement" }, { "docid": "10326594", "title": "", "text": "Instead, under the doctrine of exhaustion of administrative remedies, the private litigant may review the errors of the Board resulting from the refusal of the Board to petition for enforcement' of the subpena on either a petition to enforce or set aside the Board’s final order under Sections 10(e) and 10(f) of the Act (29 U.S.C. § 160(e) and (f)). See General Engineering, Inc. v. NLRB, 341 F.2d 367 (9 Cir. 1965); NLRB v. Seine and Line Fishermen’s Union, 374 F.2d 974, 980-981 (9 Cir. 1967), cert. denied, 389 U.S. 913, 88 S.Ct. 239, 19 L.Ed.2d 261 (1967); Singer Sewing Machine Co. v. NLRB, 329 F.2d 200, 202, 12 A.L.R.3d 775 (4 Cir. 1964); Harvey Aluminum v. NLRB, 335 F.2d 749, 753-756 (9 Cir. 1964); NLRB v. Capital Fish Company, 294 F.2d 868 (5 Cir. 1961). Appellees cite two statutes in other fields where Congress has made a subpena enforceable on the application of any interested person; Sec. 503(d) (1) of the Housing Act of 1964, 12 U.S.C. § 1464(d) (1) and Sec. 409(e) and (f) of the Federal Communications Act of 1934, 47 U.S.C. § 409(e) and (f). Appellees argue there would appear to be no sound reason why Congress would permit private applications in these instances and not in NLRB litigation. The argument cuts strongly in the opposite direction. Congress knew how to draft such a provision when it desired to include one. We find no merit in the contention. Appellees urge that Sec. 6(d) of the Administrative Procedure Act, 5 U.S.C. § 555(d) requires a broad interpretation of Sec. 11(2) of the Act (29 U.S.C. § 161(2)). However, Sec. 11(2) (29 U.S.C. § 161(2)) was re-enacted without change at the time of the 1947 Taft-Hartley amendments, (61 Stat. 136) one year after the adoption of the Administrative Procedure Act. Appellees cite recent amendments to Sec. 3 of the Administrative Procedure Act by the Public Information Act of 1966. (5 U.S.C. § 552(a) (1) and (2)), and the provision that “on complaint” a district court has jurisdiction to enter an order compelling production of documents, 5 U.S.C. §" }, { "docid": "11986528", "title": "", "text": "all. As the examiner pointed out, the union’s charge did not in terms request that the wage promise be rescinded. However, respondents sought to offer into evidence a “Notice to All Employees” form which the Board, prior to the bringing of the formal complaint, proposed as part of a settlement. This concluded, “WE WILL, should the above-named Union so request, rescind the wage increase granted employees effective December 2, 1966.” The examiner excluded this offer. Board counsel argue that he did so correctly, because settlement negotiations are wholly privileged. This overlooks the well-recognized exception regarding admissions of fact as distinguished from hypothetical or provisional concessions conditioned upon the settlement’s completion. See generally, Wigmore, Evidence, § 1061; Factor v. Commissioner, 9 Cir., 1960, 281 F.2d 100, 125, cert. denied 364 U.S. 933, 81 S.Ct. 380, 5 L.Ed.2d 365. If the proposed notice was what the Board wanted, presumably it was a statement of the union’s position, and admissible as such when the Board later says its position was different. Its exclusion was prejudicial error. The question remains whether we should order a new hearing to determine the truth of respondents’ view that the union was seeking, by its unfair labor practice charge, to revoke the wage increase obtained by the efforts of another group of employees until it could be the negotiator, or whether the Board’s position is untenable in any event. We believe the latter. The Board’s decision was reached without any apparent consideration of three important matters. First, with respect to its finding that the notice interfered with a free election, we ask what has become of the Board’s familiar rule that prejudice depends upon lack of opportunity to reply in time. Ralston Purina Co., 1964, 147 N.L.R.B. 506; Pepperell Mfg. Co. v. NLRB, 5 Cir., 1968, 403 F.2d 520. On October 27 no election was even scheduled. Next we ask what has become of the companion rule that prejudice depends upon the ability of the replying party effectively to rebut the substance of the misrepresentation. See Celanese Corp., 1958, 121 N.L.R.B. 303, 307, enforcement denied 7 Cir., 279" }, { "docid": "22939855", "title": "", "text": "Section 7 rights.” 195 N.L.R.B. at 267. This modified the decision of the trial examiner, who had followed prior Board doctrine by invalidating the no-distribution rule only insofar as it interfered with employee rights to distribute literature on behalf of unions other than the incumbent. See text infra. . But see Eastex, Inc. v. NLRB, 437 U.S. 556, 575 n. 23, 98 S.Ct. 2505, 2517 n. 23, 57 L.Ed.2d 428 (1978) (interpreting Magnavox as a “limited extension of the Republic Aviation rule to cover the distribution of literature by dissident employees advocating the displacement of a union”). . Although in the present proceeding the Board ascribed to United Aircraft the premise that a union could waive the employees’ right to engage in “all” solicitation, 260 N.L.R.B. No. 8, at 6 (and in so doing plainly misread our decision, which emphasized the limited nature of the solicitation restrictions, 440 F.2d at 96, and distinguished United’s rule from the “broad bans” at issue in other cases, id. at 97 n. 9), the Board took no such position before the Supreme Court in Magnavox. The Board’s petition for certiorari contained only a “cf.” reference to United Aircraft, listing it simply as one of several cases illustrating that the question of union waiver of employee rights had been a recurrent problem before the courts. (Board’s petition for certiorari at 7-8.) The Board in no way suggested that United Aircraft was inconsistent with the Eighth Circuit’s rule, espoused by the Board in Magnavox; and the Court did not mention United Aircraft at any point in its discussion. MANSFIELD, Circuit Judge (dissenting): I respectfully dissent for the reason that in my view the Supreme Court’s decision in NLRB v. Magnavox Co., 415 U.S. 322, 94 S.Ct. 1099, 39 L.Ed.2d 358 (1974), established fundamental principles regarding employees’ in-plant § 7' solicitation rights which preclude our giving collateral estop-pel effect to our earlier decision in United Aircraft Corporation v. NLRB, 440 F.2d 85 (2d Cir.1971), and mandate our enforcement of the Board’s order in the present case. In United Aircraft we held that an employer’s limited ban on" }, { "docid": "14863636", "title": "", "text": "Judge and the Board are the triers of fact in the first instance, their credibility resolutions are to be accorded considerable weight on review. NLRB v. Barberton Plastics Products, Inc., 354 F.2d 66, 69 (6th Cir.1965) (“the credibility of witnesses is an issue to be determined by the trial examiner and Board as trier of the facts”); NLRB v. Nelson Mfg. Co., 326 F.2d 397, 398 (6th Cir.1964); NLRB v. Interurban Gas Corp., 317 F.2d 724, 725 (6th Cir.1963); N.L.R.B. v. Bendix Corp., 299 F.2d 308, 310 (6th Cir.), cert. denied, 371 U.S. 827, 83 S.Ct. 47, 9 L.Ed.2d 65 (1962). See NLRB v. Fredrick’s Foodland, Inc., 655 F.2d 88, 89 (6th Cir.1981) (per curiam). The Board’s choice between conflicting testimony will not be set aside simply because this court “would justifiably have made a different choice had the matter before it been de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1950). See Interban Gas Corp., supra; Bendix Corp., supra. We will set aside the Board’s determination of credibility only where its resolution is unreasonable. NLRB v. Com General Corp., 684 F.2d 367 (6th Cir.1982) (“Reviewing the credibility findings and inferences drawn by the Board from the evidence, the test is whether the Board’s conclusions are reasonable in light of the proven facts”); NLRB v. G & S Metal Products Co., 489 F.2d 441, 443 (6th Cir.1973); NLRB v. Paschall Truck Lines, 469 F.2d 74, 76 (6th Cir.1972) (“In reviewing credibility findings and inferences drawn by the Board from the evidence the test for a reviewing court is whether the conclusions are reasonable in light of the proven facts. Thus, this court may not substitute its judgment on the question whether the inference drawn is the correct one or whether a different inference would be better supported, but is limited to the determination of reasonableness—not rightness”). Although this court will not substitute its judgment for that of the Board, NLRB v. Paschall Truck Lines, 469 F.2d at 76, this court will not be bound by the Board’s conclusions when the" }, { "docid": "14863635", "title": "", "text": "may find a violation where the union refuses to place non-members on the referral list or gives members preference on the referral list or give members preference over nonmembers in referrals. NLRB v. Local No. 86, Sheet Metal Workers Int'l Assn, 491 F.2d 1017 (6th Cir.1974); NLRB v. United Ass’n of Journeymen and Apprentices, etc., 424 F.2d 390 (6th Cir.1970). The Board’s order should be enforced, therefore, if substantial evidence supports its finding that the Local refused to permit Moore and Rawson to remain on the out of work list because they were travelers and not members of the Local. The issue presented in this case is whether the Administrative Law Judge and the Board made proper credibility determinations. The Local contends that the Administrative Law Judge should not have credited the testimony of Moore and Raw-son and should have accepted the testimony of Mullaly and Hillis. The Board argues that Administrative Law Judge properly resolved the conflicting testimony. The standard for review for the Board’s determinations of credibility is narrow. Because the Administrative Law Judge and the Board are the triers of fact in the first instance, their credibility resolutions are to be accorded considerable weight on review. NLRB v. Barberton Plastics Products, Inc., 354 F.2d 66, 69 (6th Cir.1965) (“the credibility of witnesses is an issue to be determined by the trial examiner and Board as trier of the facts”); NLRB v. Nelson Mfg. Co., 326 F.2d 397, 398 (6th Cir.1964); NLRB v. Interurban Gas Corp., 317 F.2d 724, 725 (6th Cir.1963); N.L.R.B. v. Bendix Corp., 299 F.2d 308, 310 (6th Cir.), cert. denied, 371 U.S. 827, 83 S.Ct. 47, 9 L.Ed.2d 65 (1962). See NLRB v. Fredrick’s Foodland, Inc., 655 F.2d 88, 89 (6th Cir.1981) (per curiam). The Board’s choice between conflicting testimony will not be set aside simply because this court “would justifiably have made a different choice had the matter before it been de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1950). See Interban Gas Corp., supra; Bendix Corp., supra. We will set aside the" }, { "docid": "4806970", "title": "", "text": "that this Court must decide the constitutional issue regardless of whether the Board validly delegated its § 10(j) powers to the General Counsel. DISCUSSION I. In 1947, Congress passed the Labor Management Relations Act (popularly known as the Tafk-Hartley Act), which amended the N.L.R.A. See Pub.L. No. 80-101, § 3(a)-(b), 61 Stat. 136, 139 (1947). The purpose of the Taft-Hartley Act (the “Act”) was to expand the N.L.R.B. and structure the agency in a way that separated its prosecutorial functions from its adjudicative functions. See NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 117-118, 108 S.Ct. 413, 98 L.Ed.2d 429 (1987). To achieve these ends, the Taft-Hartley Act established the position of General Counsel for the N.L.R.B.; increased the size of the Board from three members to five; increased the Board’s quorum requirement from two to three; and allowed the Board to adjudicate cases in panels by delegating its authority to three-member groups empowered to act with a quorum of two members. See 29 U.S.C. § 153(b). The Tafk-Hartley Act also gave the N.L.R.B. the ability to petition a district court for injunctive relief pending administrative review of charges of unfair labor practices. Section 10(j) states that the “Board shall have power, upon issuance of a complaint ... charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court ... for appropriate temporary relief.” 29 U.S.C. § 160(j). Although § 10(j) grants this power to “the Board,” the Tafk-Hartley Act also states that the General Counsel has “final author ity, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law.” 29 U.S.C. § 153(d) (emphasis added). Immediately following the passage of the Taft-Hartley Act, the Board and the General Counsel entered into an unpublished “memorandum of understanding” under which the General Counsel" }, { "docid": "16825358", "title": "", "text": "as contemplated by the Act is reasonably neces sary to overcome the effect of the interference with self organization resulting from the refusal to bargain. An employer should not be allowed to discredit a bargaining agent selected by an overwhelming majority of his* employees by refusal to bargain with it and then take advantage of the loss of membership due to his wrongful act as an excuse for refusing to recognize it as a bargaining agent.” Moreover, in a subsequent order dated March 11, 1941, we adjudged the Highland Park Company in contempt when it attempted to urge this same argument as a defense for its failure to obey our decree. And a wealth of judicial utterance in the form of decisions and dicta by the Supreme Court and each of the Circuit Courts of Appeals sustains our position in this respect. N.L.R.B. v. P. Lorillard Co, 1942, 314 U.S. 512, 62 S.Ct. 397, 86 L.Ed. 380; International Ass’n of Machinists v. N.L.R.B, 1940, 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50; N.L.R.B. v. Bradford Dyeing Ass’n, 1940, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226; cf. N.L.R.B. v. Clinton E. Hobbs Co, 1 Cir., 1942, 132 F.2d 249; N.L.R.B. v. Medo Photo Supply Corp., 2 Cir., 1943, 135 F.2d 279; Oughton v. N.L.R.B, 3 Cir., 1941, 118 F.2d 486; N.L.R.B. v. Whittier Mills Co, 5 Cir., 1940, 111 F.2d 474; N.L.R.B. v. Burke Machine Tool Co., 6 Cir, 1943, 133 F.2d 618; N.L.R.B. v. Chicago Apparatus Co, 7 Cir., 1940, 116 F.2d 753; Bussmann Mfg. Co. v. N.L.R.B, 8 Cir, 1940, 111 F.2d 783; N.L.R.B. v. Biles Coleman Lumber Co, 9 Cir., 1938, 96 F.2d 197; Continental Oil Co. v. N.L.R.B., 10 Cir., 1940, 113 F.2d 473; N.L.R.B. v. Porcelain Steels, 6 Cir, 138 F.2d 840, decided Nov. 30, 1943. While it is true that the loss of majority in the instant case occurred, not among the employees composing the original working force of the Company, but rather among the changed personnel composed largely of new employees who replaced the discharged employees, the principle that the union" }, { "docid": "1973155", "title": "", "text": "to intervene in Kesner’s review proceedings the Board objected stating that if the union desired review of the Board’s decision adverse to it, “it may employ the simple expedient of filing a petition to review under section 10(f) of the Act.” We are not persuaded that the Board’s prior suggestion that Local 705 file a § 10(f) petition precludes the Board from now challenging the union’s right to attack the Board’s order on any legal basis it chooses. The suggestion scarcely invokes the application of waiver or estoppel concepts. See Marshall Field & Co. v. N.L.R.B., 318 U.S. 253, 256, 63 S.Ct. 585, 586, 87 L.Ed. 744, 746 (1943). The relevant portion of the cross-referenced section 10(e) provides: No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. Under applicable Board rules, “[a]ny exception to a ruling, finding, conclusion, or recommendation which is not specifically urged shall be deemed to have been waived. Any exception which fails to comply with these foregoing requirements may be disregarded.” 29 C.F.R. § 102.46(b). Local 705 urges that it can raise the Miranda Fuel objection before this court because it won before the ALJ and therefore had no cause to urge this point or any other point before the Board. As authority for this position, Local 705 cites N.L.R.B. v. Teamsters Local 282, 412 F.2d 334, 337 n. 2 (2d Cir.1969), cert. denied, 396 U.S. 1038, 90 S.Ct. 682, 24 L.Ed.2d 682 (1970), and N.L.R.B. v. Good Foods Mfg. Co., 492 F.2d 1302, 1305 (7th Cir.1974). We do not find that these cases require this court to conclude that Local 705 has shown “extraordinary circumstances” excusing its failure to present the Miranda Fuel question to the Board, and we find no such circumstances under the factual circumstances of this case. See also Barton Brands v. N.L.R.B., 529 F.2d 793 (7th Cir.1976). While Good Foods uses language facially supporting Local 705’s position, this court in that case found" }, { "docid": "16825365", "title": "", "text": "grants to the Union a permanent status as duly authorized and exclusive bargaining agent for any fixed period of time. After the conditions of free choice have been restored by collective bargaining, in good faith on the part of the Company, then should these employees desire to be represented by some body other than the Union, they may then avail themselves of the statutory procedure of the Act itself (Section 9(c), 29 U.S.C.A. § 159(c) in order to guarantee that their genuine desires can be ascertained and respected. But until the Company purges itself of its unlawful conduct in violating our decree, the employees’ true desires “are matters of speculation and argument.” N.L.R.B. v. Brown Paper Mill Co., 5 Cir., 1940, 108 F.2d 867, 872, certiorari denied 1940, 310 U.S. 651, 60 S.Ct. 1104, 84 L.Ed. 1416. In any event, the mere fact that the Union may have lost its majority status since the Company refused to bargain does not authorize us to direct a new election. N.L.R.B. v. Medo Photo Supply Corp., 2 Cir., 1943, 135 F.2d 279. This was a matter for the Board properly to determine and we see ho reason for disturbing its action adverse to the Company. N.L.R. B. v. P. Lorillard Co., 1942, 314 U.S. 512, 513, 62 S.Ct. 397, 86 L.Ed. 380. It would have been a perversion of the underlying policy of the Wagner Act for the Board to have granted the Company’s request for a redetermination of the Union’s majority status when the Company admittedly had not as yet complied with our decree and when the effects of the Company’s unfair labor practices had not as yet been dissipated. Oughton v. N.L.R.B., 3 Cir., 1941, 118 F.2d 486. An order adjudging the Company and Raulerson in contempt should therefore issue. SOPER, Circuit Judge (dissenting). The petition of the Great Southern Trucking Company, filed with the Labor Board on March 3, 1943, contained a request not unreasonable on its face, that the Board redetermine the wishes of the company’s employees with respect to their bargaining representative. The company had complied with the" } ]

[ { "docid": "2257030", "title": "", "text": "flow below 1,000 cfs has a significant effect on the environment because the reduction does not constitute a “major Federal action” within the meaning of the statute. The construction of the Palisades project was completed in 1956, and was in operation at the time NEPA became effective on January 1, 1970. Since NEPA does not apply retroactively, see Westside Prop. Owners v. Schlesinger, 597 F.2d 1214, 1223 (9th Cir.1979), an EIS cannot be required on the basis of the project’s construction. However, if an ongoing project undergoes changes which themselves amount to “major Federal actions,” the operating agency must prepare an EIS. See Andrus v. Sierra Club, 442 U.S. 347, 363 n. 21, 99 S.Ct. 2335, 2343 n. 21, 60 L.Ed.2d 943 (1979) (“ ‘[Mjajor Federal actions’ include the ‘expansion or revision of ongoing programs.’ ”). This circuit has held that where a proposed federal action would not change the status quo, an EIS is not necessary. “An EIS need not discuss the environmental effects of mere continued operation of a facility.” Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115, 116 (9th Cir.1980) (holding EIS unnecessary for federal financial assistance in purchasing an existing airport since federal action would not change status quo), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981); see also Committee for Auto Responsibility v. Solomon, 603 F.2d 992 (D.C.Cir.1979) (holding government lease of parking area to new parking management firm does not trigger EIS requirement since area already used for parking so no change in status quo). We find the reasoning of the district court in County of Trinity v. Andrus particularly instructive. In Trinity the plaintiffs sought to enjoin the Bureau from lowering the level of a reservoir during the drought year of 1977 because of the potential damage to the fish population in the reservoir. The court explained that the issue was “not whether the actions are of sufficient magnitude to require the preparation of an EIS, but rather whether NEPA was intended to apply at all to the continuing operations of completed facilities.” Id. at 1388. The court distinguished" } ]

[ { "docid": "20396113", "title": "", "text": "whether an EIS is necessary. 40 C.F.R. § 1508.9. If after conducting an EA the agency determines that the proposed action will not result in a significant impact, the agency must issue a finding of no significant impact (“FONSI”) in heu of an EIS. 40 C.F.R. §§ 1508.9, 1508.13; Barnes v. United States Dep’t. of Transp., 655 F.3d 1124, 1131 (9th Cir. 2011). B The Colorado River Storage Project Act of 1956 authorized the construction of the Dam. See 43 U.S.C. § 620 et seq. Finished in 1963, the Dam is located on the Colorado River in Northern Arizona, and it creates Lake Powell, the second largest reservoir in the United States, which provides drinking water for more than 25 million people. Also, the Dam each year produces more than 3 million megawatt hours of electricity. The Colorado River Basin Project Act of 1968 (“CRBPA”) required the Secretary of the Interior (“the Secretary”) to adopt criteria for the long-range operation of all reservoirs and dams constructed and operated under the CRBPA, including the Dam. See 43 U.S.C. § 1552(a). The Secretary adopted the Long-Range Operating Criteria in 1970, which established a minimum annual water release from Lake Powell of 8.23 million acre feet. See Colorado River Reservoirs: Coordinated Long-Range Operation, 35 Fed.Reg. 8,951-52 (June 10, 1970). The CRBPA also required the Secretary to transmit annual operating plans (“AOPs”) to Congress and the Governors of the Colorado River Basin States. See 43 U.S.C. § 1552(b). AOPs must describe “the actual operation under the adopted criteria for the preceding compact water year and the projected operation for the current year.” Id. The placement and management of the Dam have changed the historical flow and characteristics of the Colorado River below the Dam. The Dam traps a large majority of the sediment that would otherwise flow down the Colorado River, impairing critical habitat of the humpback chub below the Dam. Also, the average temperature of the River below the Dam is cooler because the Dam releases waters from the deeper and colder reaches of Lake Powell. This harms the humpback chub, which thrives" }, { "docid": "21443752", "title": "", "text": "must establish they have suffered a legal wrong, or will be adversely affected or aggrieved within the meaning of a relevant statute. Id. at 883, 110 S.Ct. at 3186. Only the first requirement is at issue here. NEPA requires federal agencies to prepare an EIS for “every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Thus, NEPA places three requirements on actions subject to its procedures. The action must (1) be federal, (2) “major”, and (3) have a significant environmental impact. An EIS is not necessary where a proposed federal action would not change the status quo. National Wildlife Federation v. Espy, 45 F.3d 1337, 1343 (9th Cir.1995), citing Upper Snake River v. Hodel, 921 F.2d 232, 235 (9th Cir.1990). In many ways, a programmatic EIS is superior to a limited, contraeUspecific EIS because it examines an entire policy initiative rather than performing a piecemeal analysis within the structure of a single agency action. Ass’n of Pub. Agency Customers v. Bonneville Power Administration, 126 F.3d 1158, 1184 (9th Cir.1997). However, NEPA does not require an agency to consider the environmental effects that speculative or hypothetical projects might have on a proposed project. See Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) (Finding NEPA inapplicable to a series of studies on the impact of resource development activities in the “Northern Great Plains” because they were meant only “to gain background environmental information for subsequent application in the decision making process with respect to individual coal-related projects.”). Long-range aims are quite different from concrete plans and specific undertakings such as the FS’s Land and Resource Management Plans and the BLM’s Resource Management Plans which the Secretaries have submitted for purposes of environmental analysis under NEPA. See Id. NEPA does not require an agency to consider the environmental effects that speculative or hypothetical projects might have on a proposed project. Id. With respect to NEPA, National Wildlife Federation is the seminal case for purposes of resolving the inter-related issues of ripeness" }, { "docid": "1243985", "title": "", "text": "in these public materials are such reports as “An Ecological Study of the TennesseeTombigbee Waterway” conducted by Mississippi State University, “A Report on the Fishes on the Upper Tombigbee River, Yellow and Indian Creek Systems of Alabama and Mississippi” performed by the University of Alabama under the direction of Dr. Herbert Boschung, a bird study directed by Dr. David Rogers of the University of Alabama, various archeological surveys, a study of the macrobenthos in the river section conducted by Teledyne Brown Engineering, studies of the hydrologic environment conducted by the U. S. Geological Survey, an erosion control study for the divide cut conducted by Mississippi State University, and a report on Mackeys Creek release temperatures. Plaintiffs claim that significant project changes occurring since the 1971 EIS include (a) increase of project land acquisition from. 70,000 acres to 105,000 acres; (b) changing from a “perched canal” to the “chain-of-lakes” concept in the canal section; (c) shortening the river section by 20 miles; and (d) taking additional spoil material excavated in the divide cut section. These claims, both singly and collectively, are without merit. It is clear that major sections of more acreage in the river, canal and divide cut sections will be unaffected by construction, and will not result in destruction of habitat. In other instances, additional lands were acquired to mitigate environmental impact. (D. Ex. 47). Mere increase in the quantity of land for a project does not alone constitute a project change or basis for supplementing the EIS. Plainly, the chain-of-lakes design in the canal section was adopted because of its environmental and aesthetic advantages. Additionally, this court has specifically found that the chain-of-lakes design is not a significant change inasmuch as it does not necessitate acquisition of additional real estate and because the acreage to be inundated by the pools is lowland subject to periodic flooding under the original design. 467 F.Supp. at 910. This court also held that the chain-of-lakes concept “does not affect either the scope or purpose of the project, nor does it materially change the plan of improvement.” Id. As for shortening the river" }, { "docid": "1328988", "title": "", "text": "to the current EA, it’s “unlikely” that lake levels would rise and fall over a five-foot range three times every winter— a variety of factors, such as power demand and weather conditions, will influence how the agencies operate the dam each year. Additionally, there may still be winters where the agencies hold the lake’s level constant in order to facilitate kokanee reproduction. Thus, the flexible winter operations proposal comprises elements of both earlier and more recent management strategies. These details support the conclusion that the agencies charged with operating the Albeni Falls Dam will do so in accordance with the status quo. Id.; see also Grand Canyon Trust, 691 F.3d at 1022. Petitioner finally argues that implementing flexible winter operations requires an EIS because the continued operation of the Albeni Falls Dam is itself a major federal action that significantly affects the human environment. See 40 C.F.R. § 1508.18(a) (“Actions include new and continuing activities_”). But decisions made as a part of the ongoing operation of a federal project must themselves “rise to the level of major federal actions to warrant preparation of an EIS.” Upper Snake River, 921 F.2d at 235 n.3. Requiring an agency to prepare an EIS every time it takes an action consistent with past conduct would grind agency decisionmaking to a halt. Cf. Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 373, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (explaining that requiring a supplemental EIS every time new information is available “would render agency decisionmaking intractable”); Grand Canyon Trust, 691 F.3d at 1022 (noting it would be neither pragmatic nor realistic to require an agency to prepare an EIS when it engages in “routine and required annual reporting”). 2. Petitioner claims the EA arbitrarily concludes that flexible winter operations will have only an incremental - impact on the spread of the flowering rush, an invasive species that was discovered around Lake Pend Oreille in 2008. Because the decision adopting flexible winter operations doesn’t trigger NEPA’s requirement to publish an EIS, this and Petitioner’s other challenges to the EA’s finding of no significant impact are" }, { "docid": "20396138", "title": "", "text": "from the Palisades Dam and Reservoir located on the South Fork of the Snake River in Idaho. Reclamation had previously adopted a standard operating procedure in which it maintained the flow of water from the dam in the South Fork at a level above 1,000 cubic feet per second (“cfs”). Id. at 233. In response to drought conditions, however, Reclamation reduced the flow to below 1,000 cfs without first preparing an EIS. Id. at 234. We noted that “if an ongoing project undergoes changes which themselves amount to ‘major Federal actions,’ the operating agency must prepare an EIS;” however, we said that “where a proposed federal action would not change the status quo, an EIS is not necessary.” Id. at 234-35. We characterized the fluctuations in flow as “routine managerial actions” that Reclamation had continuously implemented while “operating the facility in the manner intended.” Id. at 235. In that light, we concluded that Reclamation was not required to comply with NEPA when it made changes to the volume of water it released from the Dam based on changes in weather conditions. Id. at 235-36. Here, Reclamation is not making material changes to the operating criteria for the Dam when it prepares and issues an AOP. As in Upper Snake River Chapter of Trout Unlimited, Reclamation does not change the status quo through the AOP process. Reclamation is not authorized to operate the Dam under another flow regime by simply declaring such a change in an AOP. Instead, as stated above, an AOP merely chronicles Reclamation’s ongoing operation of the Dam under the existing operating criteria, MLFF, during the preceding year and projects how Reclamation will do the same in the upcoming year. In addition, we have said that “[t]he standards for ‘major federal action’ under NEPA and ‘agency action’ under the ESA are much the same. If there is any difference, case law indicates ‘major federal action’ is the more exclusive standard.” Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1075 (9th Cir.1996); see also Karuk Tribe, 681 F.3d at 1024 (“Although the ‘major federal action’ standard under NEPA is similar" }, { "docid": "20396137", "title": "", "text": "the ESA for want of consultation about an endangered or threatened species whenever the agency establishes material operating criteria for a dam, and when it embarks on a significant new direction in its operations. But to allow ESA challenge on an annual basis for each AOP would be unduly cumbersome and unproductive in addressing the substance of environmental issues. Annual challenges could not likely be resolved fully before the next AOP came along, and there is no benefit to endangered species in having an unending judicial process concerning annual reporting requirements that Congress mandated. B The Trust next contends that Reclamation violates NEPA by not preparing either an EA or EIS for each AOP. The district court concluded that AOPs are not major federal actions for which NEPA requires that an EA and/or EIS be prepared. 42 U.S.C. § 4332(C). We agree. In Upper Snake River Chapter of Trout Unlimited v. Hodel, 921 F.2d 232 (9th Cir.1990), we considered whether Reclamation was required to comply with NEPA before making changes to the flow of water from the Palisades Dam and Reservoir located on the South Fork of the Snake River in Idaho. Reclamation had previously adopted a standard operating procedure in which it maintained the flow of water from the dam in the South Fork at a level above 1,000 cubic feet per second (“cfs”). Id. at 233. In response to drought conditions, however, Reclamation reduced the flow to below 1,000 cfs without first preparing an EIS. Id. at 234. We noted that “if an ongoing project undergoes changes which themselves amount to ‘major Federal actions,’ the operating agency must prepare an EIS;” however, we said that “where a proposed federal action would not change the status quo, an EIS is not necessary.” Id. at 234-35. We characterized the fluctuations in flow as “routine managerial actions” that Reclamation had continuously implemented while “operating the facility in the manner intended.” Id. at 235. In that light, we concluded that Reclamation was not required to comply with NEPA when it made changes to the volume of water it released from the Dam" }, { "docid": "8831157", "title": "", "text": "OPINION McKEOWN, Circuit Judge: Lake Roosevelt in eastern Washington state serves a variety of purposes, including irrigation, navigation, flood control, power generation, recreation, and fish management. We consider here a challenge by environmental groups to a proposed incremental drawdown of water from the lake. As always, our review under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., is limited to determining whether the agency, in this case the United States Bureau of Reclamation (“Reclamation”), took a “hard look” and genuinely scrutinized the environmental consequences of its proposed action. Our own close look at the record persuades us that Reclamation was keenly aware of, and appropriately discharged, this duty when it prepared the drawdown project analysis. Background The Columbia River forms the centerpiece of a basin that spans over 250,000 square miles of the United States and Canada. The river, which is home to numerous species of salmon and other fish, is controlled by a “complex and highly regulated system of ... dams and reservoirs.” These include the Grand Coulee Dam, which is located in eastern Washington, nearly 600 miles from the mouth of the Columbia River and approximately 150 miles from the Canadian border. The portion of the Columbia River between the Grand Coulee Dam and the border is known as Lake Roosevelt. Lake Roosevelt is operated by Reclamation and other federal agencies in cooperation with state agencies and in accord with a hodgepodge of treaties, statutes, and contracts. The lake typically holds about 5 million acre-feet of water. Water levels in the lake are, however, routinely lowered twice a year — once in early spring for flood control, and again in summer to increase downstream flow in the Columbia River. Water levels also fluctuate on a daily basis as a result of power-generating operations at the Grand Coulee Dam. In addition, the government diverts 2.65 million acre-feet of water from Lake Roosevelt every year to irrigate farmland in Washington state. Faced with a variety of water needs in the Columbia River Basin, Reclamation, the State of Washington Department of Ecology (“Ecology”), and other agencies agreed" }, { "docid": "8831179", "title": "", "text": "for the agency to “address [the impacts of the future project] at a later stage.” Id.; see also Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1357-58 (9th Cir.1994) (“Having persuaded the district court that it understands its duty to follow NEPA in reviewing future site-specific programs, judicial estoppel will preclude the [agency] from later arguing that it has no further duty to consider the cumulative impact of [those] programs.”). In other words, having acknowledged the significance of a future project through a notice of intent, the agency cannot escape its downstream obligation to consider the impact of the project. We face the same situation as in Northern Alaska Environmental Center. By issuing the notice of intent to prepare an EIS for the Special Study, the government impliedly promised to consider the cumulative effects of the special study with the drawdown project in that EIS. In fact, Reclamation expressly made the same promise to this court, stating in its opening brief that “there is no danger that [actions taken as a result of the Special Study] would escape NEPA review.” The im port of the government’s promises is that Reclamation will prepare a “document [that] explores the collective impact of’ the drawdown project and the Special Study. See Blackwood, 161 F.3d at 1215 (rejecting a cumulative effects analysis because no such document was in the offing). As a result, CELP cannot argue that Reclamation is attempting to initiate multiple draw-downs from Lake Roosevelt “without ever having to evaluate the ... cumulative environmental impacts” of those actions. Native Ecosys. Council v. Dombeck, 304 F.3d 886, 897 (9th Cir.2002). We also note that the drawdown project discussed in the EA involves much smaller diversions of water than the Special Study, which could result in a drawdown of well over 300,000 acre-feet per year. To direct that Reclamation must account for the cumulative effects of the drawdown project and the Special Study in the drawdown project EA would thus be to direct the agency to wag the dog by its tail. For these reasons, and in accordance with Northern Alaska Environmental Center," }, { "docid": "8831180", "title": "", "text": "Special Study] would escape NEPA review.” The im port of the government’s promises is that Reclamation will prepare a “document [that] explores the collective impact of’ the drawdown project and the Special Study. See Blackwood, 161 F.3d at 1215 (rejecting a cumulative effects analysis because no such document was in the offing). As a result, CELP cannot argue that Reclamation is attempting to initiate multiple draw-downs from Lake Roosevelt “without ever having to evaluate the ... cumulative environmental impacts” of those actions. Native Ecosys. Council v. Dombeck, 304 F.3d 886, 897 (9th Cir.2002). We also note that the drawdown project discussed in the EA involves much smaller diversions of water than the Special Study, which could result in a drawdown of well over 300,000 acre-feet per year. To direct that Reclamation must account for the cumulative effects of the drawdown project and the Special Study in the drawdown project EA would thus be to direct the agency to wag the dog by its tail. For these reasons, and in accordance with Northern Alaska Environmental Center, we conclude that Reclamation’s failure to consider the cumulative effects of the Special Study and the drawdown project in the drawdown project EA does not violate NEPA. III. Indirect Effects Agencies conducting NEPA review must also consider the indirect effects of the proposed project. Indirect effects are those effects “caused by the [agency] action [that] are later in time or farther removed in distance, but are still reasonably foreseeable.” 40 C.F.R. § 1508.8(b). Such effects “include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.” Id.; see also, e.g., Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 867-70 (9th Cir.2005) (holding that an agency violated NEPA by failing to account for the environmental effects of the additional tanker traffic that would be caused by a proposed dock expansion). CELP’s indirect effects challenge is rooted in the expansion of the Weber Siphons, which form two portions of a" }, { "docid": "20601342", "title": "", "text": "of their importance.” Id. (citation omitted). c. Disclosures Relating to the Project’s Cost Estimate and Its Economic Viability The US$ 1.8 million cost estimate figure calculated in the Hatch Study and the Hatch Study’s assessment that the Project was economically viable are forward-looking statements accompanied by cautionary language, eligible for protection under the PSLRA safe harbor. At the time of the Secondary Offering, years remained until Galore Creek was operational, and a prediction about its ultimate costs, as well as whether the costs would be offset by sufficient revenue to render the Project economically viable, are “projection^]” plainly satisfying the definition in the PSLRA. Plaintiff unpersuasively depicts these statements as statements of present fact by arguing that NovaGold, at the time the statement was made, had already determined what the Project would cost. Any projection or forward-looking statement necessarily has its basis in current conditions, but this does not change the fact that it uses those current conditions to make some kind of prediction about the future. Plaintiffs argument is better understood as an assertion that NovaGold knew, based on present conditions, that the statements were false when made, and should not be protected by the PSLRA safe harbor. This argument is addressed below. Plaintiff also submits that the fact that the Hatch Study was a “bankable” study, designed to serve as the basis for investors to ascertain whether the Project could provide long-term returns, demonstrates that its conclusions were not forward-looking projections. Investors routinely make investment decisions using forward-looking material, betting on future returns from investments. That they do so does not render such information not forward looking. The cost figure and economic viability prediction were also accompanied by cautionary language adequate to invoke the PSLRA safe harbor and bespeaks caution doctrine. The Registration Statement’s “Cautionary Statement Regarding Forward-Looking Statements” warns investors that the Registration Statement eontain[s] forward-looking statements ... concerning the Company’s plans at the Galore Creek, Donlin Creek, Nome Operations and Ambler projects, production, capital, operating and cash flow estimates .... These statements relate to analyses and other information that are based on forecasts of future results," }, { "docid": "1243984", "title": "", "text": "or project purposes were significantly modified after the original statement was filed. Paragraph g(3), upon which defendants rely, provides that whenever it is necessary only to clarify or amplify a point of concern raised after the filing of the final EIS with CEQ or, if comments on the final statement are received from federal, state or local agencies or the public, a clarification, amplification or response shall be prepared and filed with CEQ. Defendants’ position is that since no major change has occurred in the project design or purpose, and since the original EIS has not become deficient because of failure to discuss environmental features or because of later significant modifications, it was proper for Corps officials to update the EIS by supplemental reports in the manner provided by ¶ g(3). Additionally, defendants assert that the Corps went beyond the requirements of ¶ g(3) by circulating the supplemental reports to numerous public agencies as well as to University libraries in the project area, and posting public notices as to the availability of the reports. Included in these public materials are such reports as “An Ecological Study of the TennesseeTombigbee Waterway” conducted by Mississippi State University, “A Report on the Fishes on the Upper Tombigbee River, Yellow and Indian Creek Systems of Alabama and Mississippi” performed by the University of Alabama under the direction of Dr. Herbert Boschung, a bird study directed by Dr. David Rogers of the University of Alabama, various archeological surveys, a study of the macrobenthos in the river section conducted by Teledyne Brown Engineering, studies of the hydrologic environment conducted by the U. S. Geological Survey, an erosion control study for the divide cut conducted by Mississippi State University, and a report on Mackeys Creek release temperatures. Plaintiffs claim that significant project changes occurring since the 1971 EIS include (a) increase of project land acquisition from. 70,000 acres to 105,000 acres; (b) changing from a “perched canal” to the “chain-of-lakes” concept in the canal section; (c) shortening the river section by 20 miles; and (d) taking additional spoil material excavated in the divide cut section. These claims," }, { "docid": "1328987", "title": "", "text": "near term will provide power benefits at a future date when that water is released!,] • • • depending] on power prices, load demand, and conditions at [another dam].” As the EA further explains: “Historically, winter power operations have been associated with [releasing] water for power. Water was stored for power operations during the winter in the 1980s and early 1990s.” Thus, in some winters the lake has fluctuated, and in others it hasn’t. Accordingly, the agencies will be doing “nothing new, nor more extensive, nor other than that contemplated when the project was first operational.” Upper Snake River, 921 F.2d at 235. Petitioner argues that Upper Snake River is distinguishable because “[u]nder existing operations, the Corps maintains steady lake levels throughout winter,” while under flexible winter operations, “lake levels would be raised and lowered over a five-foot range up to three times every winter for the life of the Dam.” But Petitioner’s view of “existing operations” is incorrectly limited to operations since the publication of the 1995 EA. Moreover, Petitioner mischaracterizes the proposal. According to the current EA, it’s “unlikely” that lake levels would rise and fall over a five-foot range three times every winter— a variety of factors, such as power demand and weather conditions, will influence how the agencies operate the dam each year. Additionally, there may still be winters where the agencies hold the lake’s level constant in order to facilitate kokanee reproduction. Thus, the flexible winter operations proposal comprises elements of both earlier and more recent management strategies. These details support the conclusion that the agencies charged with operating the Albeni Falls Dam will do so in accordance with the status quo. Id.; see also Grand Canyon Trust, 691 F.3d at 1022. Petitioner finally argues that implementing flexible winter operations requires an EIS because the continued operation of the Albeni Falls Dam is itself a major federal action that significantly affects the human environment. See 40 C.F.R. § 1508.18(a) (“Actions include new and continuing activities_”). But decisions made as a part of the ongoing operation of a federal project must themselves “rise to the level" }, { "docid": "1328984", "title": "", "text": "reviewed a proposal for a three-winter test to hold the lake at a high minimum and found that doing so would have no significant environmental impacts. BPA and the Corps subsequently published Records of Decision putting this plan into action. We have explained that the time for an EIS is when an agency undertakes a “significant shift of direction in operating policy.” Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008, 1022 (9th Cir. 2012) (as amended). And, for purposes of NEPA, the term “[m]ajor reinforces but does not have a meaning independent of significantly.” 40 C.F.R. § 1508.18. Thus, this short-term decision, which was found to have no significant environmental impact, could not have constituted a major federal action because it wasn’t a significant or long-term change in operating policy. In short, it did not change the status quo. Actions taken with respect to winter dam management since 1995 reinforce the conclusion that there was no change to the status quo. As mentioned, the plan to hold winter lake levels constant began as a three-year test. The agencies managing the dam twice decided to carry forward this management strategy at the urging of the U.S. Fish and Wildlife Service. It’s also notable that, since 2000, an interagency team has met each year to recommend the lake’s constant elevation for the coming winter. In four winters from 1996 to 2011, Lake Pend Oreille was held near 2051 feet; the lake was also held near that elevation in eight winters between 1980 and 1995. See Upper Snake River, 921 F.2d at 235 (finding that even if an agency had only engaged in a proposed action sporadically in the past, that was enough to show that repeating that action did not change the status quo). As in Upper Snake River, the agencies here considered each year how to manage the Albeni Falls Dam based on that year’s conditions. The Corps never relinquished its authority to fluctuate the lake’s elevation in response to power de mands: The Corps’ 2002 Water Control Manual notes that Lake Pend Oreille “is usually operated” within" }, { "docid": "17443348", "title": "", "text": "effective, January 1, 1970, are not retroactively subject to NEPA. See Upper Snake River Chapter of Trout Unlimited v. Hodel, 921 F.2d 232, 234 (9th Cir.1990). “However, if an ongoing project undergoes changes which themselves amount to major Federal actions, the operating agency must prepare an EIS.” Id. at 234-35 (citing Andrus v. Sierra Club, 442 U.S. 347, 363 n. 21, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979) (explaining that major federal actions include the “expansion or revision of ongoing programs”)). The critical inquiry is whether the BiOp causes a change to the operational status quo of an existing project. Upper Snake River, 921 F.2d at 235. Upper Snake River concerned Reclamation’s decision to reduce flows below Palisades Dam and Reservoir to below 1,000 cfs “[d]ue to lack of precipitation ... to increase water stored for irrigation.... ” 921 F.2d at 234. Although it had been standard operating procedure since 1956 to maintain flows below that dam above 1,000 cfs, during previous dry periods, the average flow had “been lower than 1,000 cfs for 555 days (or 4.75% of the total days in operation).” Id. at 233. Because the challenged flow fluctuations were within historic operational patterns, no NEPA compliance was required: The Federal defendants in this case had been operating the dam for upwards of ten years before the effective date of the Act. During that period, they have from time to time and depending on the river’s flow level, adjusted up or down the volume of water released from the Dam. What they did in prior years and what they were doing during the period under consideration were no more than the routine managerial actions regularly carried on from the outset without change. They are simply operating the facility in the manner intended. In short, they are doing nothing new, nor more extensive, nor other than that contemplated when the project was first operational. Its operation is and has been carried on and the consequences have been no different than those in years past. The plaintiffs point out that flow rates have been significantly below 1,000 cfs for" }, { "docid": "17138847", "title": "", "text": "not at all clear from the record why [the extenuating] conditions were not foreseeable to Department personnel.... The Department was well aware of public concerns relating to the release of sediment at the time of dam removal. The record is replete with concerns on this exact issue expressed well prior to design of the draw-down plan_ The record does not adequately explain why [alternative measures] could not be implemented. Further, if larger sedimentation basins could not have been constructed, the Department should not have represented to the public that it would build them, nor that the DNR’s efforts to collect sediment would be adequate to protect the navigable waters of the river and North Lake. A preponderance of the credible evidence supports a finding that a large amount of sediment was discharged into the Oconomowoe River and North Lake as a result of the partial removal of the Funk’s Dam. The record taken as a whole also establishes that these navigable waterways have been detrimentally impacted by the manner in which the partial dam removal was undertaken.... The DNR had sound reasons for removal of the dam; the Department properly planned for removal of the dam. However, as the dam was removed, the Department was too quick to throw out its drawdown and removal plans as being impossible to perform. ... ALJ Decision, Findings at ¶¶ 14,19 (citations omitted). The plaintiff alleges that silt, sediment and ongoing erosion continue to be discharged downstream through the channelized structure formed by the partially removed dam. As a result, large muck and silt bars which did not exist prior to removal have formed in the Oconomowoe River and at the river mouth in North Lake. The excess sediment transfer and silt deposits continue to impair the navigability of the river and lake and to damage the natural habitat of many species. Prior to filing this action, plaintiff Froebel originally intervened in the state administrative review proceeding surrounding the removal of Funk’s Dam, initiated by the North Lake Management District (“District”). See North Lake, 182 Wis.2d 500, 513 N.W.2d 703. In October 1992, the" }, { "docid": "1328982", "title": "", "text": "438 F.Supp. 1368, 1388 (E.D. Cal. 1977)). In other words, “where a proposed federal action would not change the status quo, an EIS is not necessary.” Id.; accord San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 646 (9th Cir. 2014). Upper Snake River involved a challenge to the Bureau of Reclamation’s management of the Palisades Dam. Upper Snake River, 921 F.2d at 233. Reclamation typically ensured that water flowed into the Snake River at a rate of at least 1,000 cubic feet per second. Id. ■ In response to a drought, the agency reduced water flow below that rate in two consecutive years and wanted to do so a third time without preparing an EIS. Id. at 233 & n.l, 234. We acknowledged that, “if an ongoing project undergoes changes which themselves amount to ‘major Federal actions,’ the operating agency must prepare an EIS.” Id. at 234. But Reclamation was not effecting a substantial operational change or expanding the Palisades Dam’s original facilities. Instead, the agency was doing what it had always done: “from time to time and depending on the river’s flow level, adjusting] up or down the volume of water released from the Dam.” Id. at 235. Accordingly, we found that Reclamation did not need to prepare an EIS. Id. at 236. If the agencies in our case have consistently fluctuated winter lake levels, formalizing that approach would not be a major federal action because the agencies would be “doing nothing new, nor more extensive, nor other than that contemplated when the [Albeni Falls Dam] was first operational.” Id. at 235. The Corps fluctuated the elevation of Lake Pend Oreille in many winters prior to 1997, and various dam management strategies considered in a 1995 EIS included elements of what is now the proposal for flexible winter operations. Accordingly, the question is whether holding lake levels constant from 1997 to 2011 changed the status quo. If not, then reverting to the previous regime doesn’t change the status quo either. The Corps discussed holding winter lake levels constant in an EA published in 1995. This document" }, { "docid": "17138848", "title": "", "text": "was undertaken.... The DNR had sound reasons for removal of the dam; the Department properly planned for removal of the dam. However, as the dam was removed, the Department was too quick to throw out its drawdown and removal plans as being impossible to perform. ... ALJ Decision, Findings at ¶¶ 14,19 (citations omitted). The plaintiff alleges that silt, sediment and ongoing erosion continue to be discharged downstream through the channelized structure formed by the partially removed dam. As a result, large muck and silt bars which did not exist prior to removal have formed in the Oconomowoe River and at the river mouth in North Lake. The excess sediment transfer and silt deposits continue to impair the navigability of the river and lake and to damage the natural habitat of many species. Prior to filing this action, plaintiff Froebel originally intervened in the state administrative review proceeding surrounding the removal of Funk’s Dam, initiated by the North Lake Management District (“District”). See North Lake, 182 Wis.2d 500, 513 N.W.2d 703. In October 1992, the District filed a petition for a contested case hearing challenging the DNR’s decisions to remove the dam and not to obtain an EIS regarding the project. The DNR granted the District’s request for a hearing on the dam removal but not on the need for an EIS. Id. Froebel was permitted to intervene before the District ultimately withdrew its request, leaving the plaintiff and the DNR as the remaining litigants in a contested case hearing on the issue of dam removal. See Froebel v. Wisconsin Dep’t of Natural Resources, 217 Wis.2d 652, 579 N.W.2d 774, 776 (Wis.App.1998). Specifically, Froebel sought to obtain an injunction ordering the DNR to halt the sediment discharge from the partially removed dam and to perform other remedial actions. Id. The contested case hearing was held on March 6-8, 1995 in Milwaukee and April 4, 1995 in Waukesha. On February 21, 1996, ALJ Boldt issued his factual findings and legal conclusions, along with an order to remand the matter to the DNR for such actions as the agency in its discretion" }, { "docid": "1328983", "title": "", "text": "done: “from time to time and depending on the river’s flow level, adjusting] up or down the volume of water released from the Dam.” Id. at 235. Accordingly, we found that Reclamation did not need to prepare an EIS. Id. at 236. If the agencies in our case have consistently fluctuated winter lake levels, formalizing that approach would not be a major federal action because the agencies would be “doing nothing new, nor more extensive, nor other than that contemplated when the [Albeni Falls Dam] was first operational.” Id. at 235. The Corps fluctuated the elevation of Lake Pend Oreille in many winters prior to 1997, and various dam management strategies considered in a 1995 EIS included elements of what is now the proposal for flexible winter operations. Accordingly, the question is whether holding lake levels constant from 1997 to 2011 changed the status quo. If not, then reverting to the previous regime doesn’t change the status quo either. The Corps discussed holding winter lake levels constant in an EA published in 1995. This document reviewed a proposal for a three-winter test to hold the lake at a high minimum and found that doing so would have no significant environmental impacts. BPA and the Corps subsequently published Records of Decision putting this plan into action. We have explained that the time for an EIS is when an agency undertakes a “significant shift of direction in operating policy.” Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008, 1022 (9th Cir. 2012) (as amended). And, for purposes of NEPA, the term “[m]ajor reinforces but does not have a meaning independent of significantly.” 40 C.F.R. § 1508.18. Thus, this short-term decision, which was found to have no significant environmental impact, could not have constituted a major federal action because it wasn’t a significant or long-term change in operating policy. In short, it did not change the status quo. Actions taken with respect to winter dam management since 1995 reinforce the conclusion that there was no change to the status quo. As mentioned, the plan to hold winter lake levels constant began" }, { "docid": "1328979", "title": "", "text": "depth and causes its shoreline to recede. For decades, the Corps maintained the flexibility to generate power during the winter months. In the initial winters of the dam’s operation, starting in the late 1950s, the Corps fluctuated the level of the lake to generate power as needed. In some years, however, the Corps held the lake’s level constant, often near 2051 feet. In 1995, the Corps determined that allowing the lake’s elevation to drop during the winter months had adverse effects on the kokanee salmon population and so beginning in 1997 began holding the lake’s elevation constant. But in 2009, BPA urged the Corps to return to a more flexible approach to winter dam management. After two years of discussions and a public comment period, the agencies confirmed in a 2011 environmental assessment (EA) that they planned to follow through with BPA’s proposal. The plan for “flexible winter power operations” gives the Corps the option each winter to store water in the reservoir and then release it through the dam according to power needs. Thus, instead of keeping the lake’s level constant, the Corps may allow it to rise and fall by as much as five feet during the winter. The EA concludes that the proposed winter fluctuations will have no significant environmental impact. Accordingly, the agencies decided to move forward with the proposal without preparing an environmental impact statement (EIS). See 40 C.F.R. §§ 1501.4(b)-(c), 1508.9. Petitioner challenges this decision as a violation of NEPA and asks us to require BPA to prepare an EIS. We have original jurisdiction pursuant to the Northwest Power Act. 16 U.S.C. § 839f(e)(5). DISCUSSION NEPA, which applies to all federal agencies, 42 U.S.C. § 4332, doesn’t dictate particular policy outcomes; instead, it regulates the manner in which agencies arrive at them. Specifically, for all “major Federal actions significantly affecting the quality of the human environment,” the agency must prepare an EIS, which is a detailed study examining the environmental consequences of its decision. Id. § 4332(2)(C). An EA is meant to briefly document the reasons for the agency’s determination whether an EIS is" }, { "docid": "17443347", "title": "", "text": "has been pled in the SLFAC. In addition, Federal Defendants addressed Reclamation’s liability under NEPA in their original briefs, see Docs. 290 at 21-23 (Federal Defendants’ Opposition) & 290-2 (Fujitani Declaration), at oral argument, and have been given further opportunity to supplement those briefs to fully address Reclamation’s role and actions. Federal Defendants also suggest that Reclamation should be permitted the opportunity to “assemble an administrative record” on the NEPA issue before it is adjudicated. Doc. 360 at 5. However, the parties previously agreed that NEPA claims against FWS related to the issuance of the BiOp could be adjudicated without reference to the administrative record. See Doc. 120 at 6-7. Federal Defendants fail to explain why NEPA claims against the Bureau related to implementation of the BiOp should be treated any differently. 3. Reclamation’s Provisional Acceptance and Implementation of the BiOp and its RPA Constitute Major Federal Action Because they Represent a Significant Change to the Operational Status Quo. Projects such as the CVP and SWP, constructed prior to the date on which NEPA became effective, January 1, 1970, are not retroactively subject to NEPA. See Upper Snake River Chapter of Trout Unlimited v. Hodel, 921 F.2d 232, 234 (9th Cir.1990). “However, if an ongoing project undergoes changes which themselves amount to major Federal actions, the operating agency must prepare an EIS.” Id. at 234-35 (citing Andrus v. Sierra Club, 442 U.S. 347, 363 n. 21, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979) (explaining that major federal actions include the “expansion or revision of ongoing programs”)). The critical inquiry is whether the BiOp causes a change to the operational status quo of an existing project. Upper Snake River, 921 F.2d at 235. Upper Snake River concerned Reclamation’s decision to reduce flows below Palisades Dam and Reservoir to below 1,000 cfs “[d]ue to lack of precipitation ... to increase water stored for irrigation.... ” 921 F.2d at 234. Although it had been standard operating procedure since 1956 to maintain flows below that dam above 1,000 cfs, during previous dry periods, the average flow had “been lower than 1,000 cfs for 555" } ]

[ { "docid": "19325275", "title": "", "text": "this Complaint took place as alleged”; whether UMAA and UMCP are “an Integrated and/or Joint Employer for some or all employment purposes”; and “[w]hether the class members are entitled to the relief as requested in this complaint.” Id. ¶ 149. II. STANDARD OF REVIEW Whether to grant a motion for leave to amend is within this Court’s discretion. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Rule 15(a)(2) typically provides the standard for whether to grant a motion for leave to amend that a plaintiff files more than twenty-one days after defendants file a responsive pleading or motion to dismiss. See id.; Fed.R.Civ.P. 15(a)(2). However, when the plaintiff moves to amend after the deadline established in the scheduling order for doing so, Rule 16(b)(4) becomes the starting point in the Court’s analysis. CBX Techs., Inc. v. GCC Techs., LLC, No. JKB-10-2112, 2012 WL 3038639, at *3 (D.Md. July 24, 2012). Thus, “once the scheduling order’s deadline for amendment of the pleadings has passed, a moving party first must satisfy the good cause standard of Rule 16(b); if the moving party satisfies Rule 16(b), the movant then must pass the tests for amendment under [Rule] 15(a).’ ” Id. (quoting Odyssey Travel Ctr., Inc. v. RO Cruises, Inc., 262 F.Supp.2d 618, 631 (D.Md.2003)); see Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir.2008). “ ‘ “[G]ood cause” means that scheduling deadlines cannot be met despite a party’s diligent efforts.’ ... Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.” CBX Techs., Inc., 2012 WL 3038639, at *4 (quoting Potomac Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 375 (D.Md.1999) (citation omitted)). The Court focuses “less ... on the substance of the proposed amendment and more ... [on] the timeliness of the motion to amend ‘and the reasons for its tardy submission.’ ” Id. (quoting Rassoull v. Maximus, Inc., 209 F.R.D. 372, 373-74 (D.Md.2002)). This is because “[a] court’s scheduling order ‘is not a frivolous piece of paper, idly entered, which can be" } ]

[ { "docid": "19325274", "title": "", "text": "this Count. Am. Compl. ¶¶ 50-95. Similarly, as amended, Count IV would encompass not only the Rehabilitation Act, but also the ADA, Title VII, 42 U.S.C. § 2000e-3, and the FMLA. Am. Compl. ¶ 130. Additionally, Plaintiff now seeks an “award of front pay and benefits” or reinstatement “to a position and salary level which the Plaintiff would have had” if she had not been constructively discharged. Id. at 34. Plaintiff also wishes to adds a new count in which she requests “Class Final Injunctive Relief and Declaratory Relief’ pursuant to Fed.R.Civ.P. 23(b)(2). She states that “[t]he proposed class has approximately twenty-five (25) employees” who are “subject to the same unlawful policies and practices as described in the instant complaint.” Am. Compl. ¶¶ 147-48. Plaintiff alleges that her claims “are typical of the designated class” and that she is “an adequate representative to address the class claim.” Id. ¶¶ 150-51. According to Plaintiff, “numerous questions of law and fact [are] common to the class,” such as “[w]hether the unlawful policies and practices set forth in this Complaint took place as alleged”; whether UMAA and UMCP are “an Integrated and/or Joint Employer for some or all employment purposes”; and “[w]hether the class members are entitled to the relief as requested in this complaint.” Id. ¶ 149. II. STANDARD OF REVIEW Whether to grant a motion for leave to amend is within this Court’s discretion. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Rule 15(a)(2) typically provides the standard for whether to grant a motion for leave to amend that a plaintiff files more than twenty-one days after defendants file a responsive pleading or motion to dismiss. See id.; Fed.R.Civ.P. 15(a)(2). However, when the plaintiff moves to amend after the deadline established in the scheduling order for doing so, Rule 16(b)(4) becomes the starting point in the Court’s analysis. CBX Techs., Inc. v. GCC Techs., LLC, No. JKB-10-2112, 2012 WL 3038639, at *3 (D.Md. July 24, 2012). Thus, “once the scheduling order’s deadline for amendment of the pleadings has passed, a moving party first must satisfy" }, { "docid": "11801999", "title": "", "text": "one claim or count”). Therefore, I will construe Plaintiffs concession that she is abandoning Counts II, III, and V in her Opposition to Summary Judgment to incorporate a motion to amend. See Fed.R.Civ.P. 1; see also Monge v. Portofino Ristorante, 751 F.Supp.2d 789, 792 n. 1 (D.Md.2010) (explaining that Rule 1 instructs the Court “not [to] exalt form over substance”); Hall v. Sullivan, 229 F.R.D. 501, 504 (D.Md.2005) (same). Whether to grant a motion for leave to amend is within this Court’s discretion. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Rule 15(a)(2) typically provides the standard for whether to grant a motion for leave to amend that a plaintiff files more than twenty-one days after defendants file a responsive pleading or motion to dismiss. See id.; Fed.R.Civ.P. 15(a)(2). However, when the plaintiff moves to amend after the deadline established in the scheduling order for doing so, as Plaintiff does here, Rule 16(b)(4) becomes the starting point in the Court’s analysis. CBX Techs., Inc. v. GCC Techs., LLC, No. JKB-10-2112, 2012 WL 3038639, at *3 (D.Md. July 24, 2012). Thus, “once the scheduling order’s deadline for amendment of the pleadings has passed, a moving party first must satisfy the good cause standard of Rule 16(b); if the moving party satisfies Rule 16(b), the movant then must pass the tests for amendment under [Rule] 15(a).’ ” Id. (quoting Odyssey Travel Ctr., Inc. v. RO Cruises, Inc., 262 F.Supp.2d 618, 631 (D.Md.2003)); see Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir.2008). “ ‘ “[G]ood cause” means that scheduling deadlines cannot be met despite a party’s diligent efforts.’ ” CBX Techs., Inc., 2012 WL 3038639, at *4 (quoting Potomac Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 375 (D.Md. 1999) (citation omitted)). The Court focuses “less ... on the substance of the proposed amendment and more ... [on] the timeliness of the motion to amend ‘and the reasons for its tardy submission.’ ” Id. (quoting Rassoull v. Maximus, Inc., 209 F.R.D. 372, 373-74 (D.Md.2002)). Specifically, the Court considers whether the moving" }, { "docid": "10807037", "title": "", "text": "which “provides that ... ‘[t]he court should freely give leave when justice so requires.’ ” Id. at 327 (quoting Fed.R.Civ.P. 15(a)(2)). Because the motions to amend came after the deadline established by the district court’s scheduling order, however, they could be granted only upon a showing of good cause, see O’Connell v. Hyatt Hotels of P.R., 357 F.3d 152, 154-55 (1st Cir.2004); Fed.R.Civ.P. 16(b)(4). “Rule 16(b)’s ‘good cause’ standard emphasizes the diligence of the party seeking the amendment.” O’Connell, 357 F.3d at 155. Partly due to his misapprehension of the correct legal standard, Cruz made minimal effort to demonstrate that good cause justified permitting an amendment. Cruz filed his first motion to amend three months after the deadline set forth in the district court’s scheduling order. The motion sought to add factual allegations re garding “a statement ... made in writing by plaintiffs immediate supervisor obtained during our efforts to prepare for the case and to comply with various information requests put forth by [defendants].” This document was evidently in plaintiffs possession, raising questions as to why it abruptly surfaced over two years after he initiated this litigation. Counsel claimed that their efforts to obtain this evidence were complicated by Cruz’s move to Florida and ill-defined health problems. These cursory explanations do not demonstrate why this supposedly crucial piece of information could not have been uncovered earlier with appropriate diligence. Cruz’s second motion to amend came nine months after the district court’s deadline. This motion similarly failed to offer sufficient explanation for the delay in seeking amendment. Cruz never identified the allegedly indispensable party he sought to add as a successor-in-interest to Bristol-Myers, and he failed to explain why he delayed until after discovery had ended to seek to rejoin Diaz as a plaintiff, despite having already filed three versions of his complaint. See O’Connell, 357 F.3d at 155 (“Such a long and unexplained delay vindicates the district court’s conclusion that plaintiffs were not diligently pursuing this litigation.”); Leary v. Daeschner, 349 F.3d 888, 907 (6th Cir.2003) (affirming denial of leave to amend where “[plaintiffs gave the district court no" }, { "docid": "14516410", "title": "", "text": "the Federal Rules of Civil Procedure.”)! We have recognized that Rule 16(a)’s good cause standard “precludes modification [of the scheduling order] unless the schedule cannot be met despite the diligence of the party seeking the extension.” See Sosa, 133 F.3d at 1418 (internal quotation marks omitted); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992) (“If [a] party was not diligent, the [good cause] inquiry should end.”). Here, Oravec did not show the requisite level of diligence in pursuing his claims. He filed his motion to amend on July 12, 2006, over twenty months after filing the original complaint, more than a year after the expiration of the deadline for amending the pleadings, and only six weeks before trial. Oravec argues that he lacked notice of the jurisdictional concern regarding his PGS copyrights until the district court indicated on July 7 that those claims could not be maintained. However, the fact that Oravec or his counsel misunderstood the scope of legal protection available for PGS works does not constitute good cause. In any event, Oravec was aware of the defendants’ challenge to his March 2004 Copyright claim since at least April 2006, when the defendants filed their motion for summary judgment. He nonetheless waited an additional three months to file additional copyright registrations and to seek leave to amend. Under these circumstances, the district court acted within its discretion in denying his motion. Oravec’s alternative argument that his registration of the March 2004 materials as architectural works eliminated the need to amend his complaint likewise is without merit. Oravec relies on Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357 (5th Cir.2004), in which the plaintiff filed an infringement action before the Copyright Office had received the plaintiffs copyright registration materials. The court held that this jurisdictional defect was cured when the materials were received, even though the plaintiff did not file a supplemental complaint. Id. at 366-67. Positive Black Talk is inapposite, however, because in that case the plaintiffs complaint related to the same copyright claim that was registered with the Copyright" }, { "docid": "17294154", "title": "", "text": "approach in our decision in Trustmark Ins. Co. v. General & Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir.2005). The two-step process is consistent with nearly every one of our sister circuits (and out of step with none). See O’Connell v. Hyatt Hotels of Puerto Rico, 357 F.3d 152, 154-55 (1st Cir.2004); Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.2000); Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84 (3d Cir.2010); Nourison Rtig Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir.2008); S & W Enters., LLC v. SouthTrust Bank of Alabama, NA 315 F.3d 533, 536 (5th Cir. 2003); Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir.2003); Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 610 (8th Cir.2011); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir.2000); Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir.1998) (per curiam); see also United States ex rel. Ritchie v. Lockheed Martin Corp., 558 F.3d 1161, 1166 (10th Cir.2009) (reserving the issue of whether, once a scheduling order has been entered, Rule 16 applies before the standards of Rule 15 are considered). The district court did not did not abuse its discretion in concluding that Alioto failed to establish good cause for modifying the scheduling order. In making a Rule 16(b) good-cause determination, the primary consideration for district courts is the diligence of the party seeking amendment. Trustmark, 424 F.3d at 553; see also 3 Moore’s Federal Practice § 16.14[l][b], at 16-72 (Matthew Bender 3d ed. 2010) (“[A]lthough undoubtedly there are differences of views among district judges about how compelling a showing must be to justify extending the deadlines set in scheduling orders, it seems clear that the factor on which courts are most likely to focus when making this determination is the relative diligence of the lawyer or lawyers who seek the change.”). Alioto offers an insufficiently robust explanation of why he was diligent. He argues chiefly that he had no reason to know that his complaint was deficient until the defendants filed their motions to" }, { "docid": "19325281", "title": "", "text": "necessary. The Court issued the original scheduling order on March 1, 2012, and Defendants served their document requests and interrogatories on June 14, 2012. Defs.’ 1st Opp’n 5. Plaintiff first served interrogatories on October 25, 2012, more than four months later and ten days after the October 15, 2012 discovery deadline in effect at that time. Id. at 5. Thereafter, at Plaintiffs request and over Defendants’ opposition, the Court extended the discovery deadline to January 15, 2012. Id. When Plaintiff asked on January 2, 2013 to depose Ms. Nias and UMAA’s corporate designee the following week, Defendants objected. Id. The parties agreed to extend the discovery deadline to February 15, 2013 to accommodate the depositions, and they agreed that Defendants’ responses to Plaintiffs interrogatories would be due January 21, 2013. Id. Thus, although Defendants’ responses were filed more than thirty days after Plaintiff served the interrogatories, they were only two days late, and it was Plaintiffs delay in serving interrogatories that occasioned her receipt of Defendants’ responses after the original discovery deadline and only a few weeks before the revised discovery deadline. This considerable, avoidable delay shows that Plaintiff did not make “diligent efforts” to meet the deadlines set in the Scheduling Order. See CBX Techs., Inc., 2012 WL 3038639, at *4 (citations and quotation marks omitted). Moreover, it suggests that Plaintiff did not act in good faith. See Tawwaab, 729 F.Supp.2d at 768-69. Defendants contend that Plaintiff had amassed a number of documents by December 7, 2012, three months before she filed her original Motion, Defs.’ 2d Opp’n 5, and she “had personal knowledge of the information she now claims was discovered for the first time during the depositions she took,” id. at 6. Specifically, Plaintiff alleges that she learned for the first time through the depositions that Ms. Nias “was not employed by the UMAA, but was instead an employee of the University of Maryland College Park,” PL’s Am. Mot. 3; and Ms. Nias “reported to Brodie Remington, a UMCP employee, for approval for even minor personnel issues,” id. at 4. Yet Plaintiff testified in her November 1," }, { "docid": "20767210", "title": "", "text": "a showing of good cause’ ”). Here, the deadline was first 12/1/10, later extended to 1/12/11, and the motion was made on 3/11/11 , two months after the extended deadline had passed. See DE[25] & [30]. Rule 16, by limiting the time for amendments, “is designed to offer a measure of certainty in pretrial proceedings, ensuring that at some point both the parties and the pleadings will be fixed.” Parker, 204 F.3d at 339-40 (internal quotation marks and citations omitted). Allowing the pleadings to be amended past the court-ordered deadline without a showing of good cause “would render scheduling orders meaningless.” Id. (quoting Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir.1998)). Thus, a party seeking to amend a complaint after the Rule 16(b) deadline to do so has lapsed must first establish good cause to modify that deadline. See Hogan v. J.P. Morgan Chase Bank, 2008 WL 4185875, at *2 (E.D.N.Y. Sept. 4, 2008). The plaintiff argues that a change in the language of Rule 16(b)(4) in 2007 from the mandatory “shall not be modified except upon ... good cause” to “may be modified only for good cause and with the judge’s consent” is “arguably more permissive.” See DE[50-5] at 7. Prior to that change, given the mandatory language of Rule 16 that a scheduling order “shall not be modified,” courts held that a motion must be denied unless the plaintiff demonstrated good cause for not making his motion to amend before the deadline. See, e.g., Lincoln v. Potter, 418 F.Supp.2d 443, 454 (S.D.N.Y.2006). The standard was that a “finding of good cause depends on the diligence of the moving party.” Parker, 204 F.3d at 340; see also Grochowski, 318 F.3d at 86; Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 244 (2d Cir.2007) (noting that the primary consideration is whether the movant can demonstrate diligence). Good cause has been measured against the diligence of the party seeking to amend the pleading and has required the movant to establish that the deadline to amend the pleading could not be met despite due diligence. Grochowski, 318 F.3d" }, { "docid": "14516409", "title": "", "text": "court has clearly abused its discretion.” Henson v. Columbus Bank & Trust Co., 770 F.2d 1566, 1574 (11th Cir.1985). Oravec’s argument on appeal focuses primarily on establishing that leave to amend was warranted under Fed.R.Civ.P. 15(a). However, because Oravec filed his motion after the scheduling order’s deadline for such motions, he “must show good cause why leave to amend the complaint should be granted.” Smith v. Sch. Bd. of Orange County, 487 F.3d 1361, 1366 (11th Cir.2007) (per curiam), petition for cert. filed, (U.S. Oct. 22, 2007) (No. 07-1228); see also Fed. R.Civ.P. 16(b); Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1284 (11th Cir.2000) (finding no abuse of discretion in district court’s denial of leave to amend on grounds of undue delay where movant failed to show good cause for delay); Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir.1998) (per curiam) (“If we considered only Rule 15(a) without regard to Rule 16(b), we would render scheduling orders meaningless and effectively would read Rule 16(b) and its good cause requirement out of the Federal Rules of Civil Procedure.”)! We have recognized that Rule 16(a)’s good cause standard “precludes modification [of the scheduling order] unless the schedule cannot be met despite the diligence of the party seeking the extension.” See Sosa, 133 F.3d at 1418 (internal quotation marks omitted); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992) (“If [a] party was not diligent, the [good cause] inquiry should end.”). Here, Oravec did not show the requisite level of diligence in pursuing his claims. He filed his motion to amend on July 12, 2006, over twenty months after filing the original complaint, more than a year after the expiration of the deadline for amending the pleadings, and only six weeks before trial. Oravec argues that he lacked notice of the jurisdictional concern regarding his PGS copyrights until the district court indicated on July 7 that those claims could not be maintained. However, the fact that Oravec or his counsel misunderstood the scope of legal protection available for PGS works does not constitute good cause." }, { "docid": "11801998", "title": "", "text": "pursue those claims any further,” and she “dismissed her claim for replevin.” Defs.’ Mem. 2 n. 2. Nonetheless, Defendants “request that this Court grant their motion for summary judgment in its entirety,” even as to Counts II, II and V that Plaintiff has abandoned. Id. at 20. The proper mechanism for a plaintiff to withdraw some, but not all, claims is to file a motion to amend pursuant to Fed.R.Civ.P. 15. See Skinner v. First Am. Bank of Va., 64 F.3d 659 (Table), 1995 WL 507264, at *2 (4th Cir.1995) (“Because Rule 41 provides for the dismissal of actions, rather than claims, Rule 15 is technically the proper vehicle to accomplish a partial dismissal.”); Young v. United Parcel Serv., No. DKC-08-2586, 2011 WL 665321, at *7 (D.Md. Feb. 14, 2011) (stating that “a plaintiff wishing to dismiss one count of a multi-count suit should ordinarily look to Rule 15, which governs amendments to pleadings”; noting that “Rule 41(a), which addresses voluntary dismissals, applies only when a party seeks to dismiss an entire action, not merely one claim or count”). Therefore, I will construe Plaintiffs concession that she is abandoning Counts II, III, and V in her Opposition to Summary Judgment to incorporate a motion to amend. See Fed.R.Civ.P. 1; see also Monge v. Portofino Ristorante, 751 F.Supp.2d 789, 792 n. 1 (D.Md.2010) (explaining that Rule 1 instructs the Court “not [to] exalt form over substance”); Hall v. Sullivan, 229 F.R.D. 501, 504 (D.Md.2005) (same). Whether to grant a motion for leave to amend is within this Court’s discretion. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Rule 15(a)(2) typically provides the standard for whether to grant a motion for leave to amend that a plaintiff files more than twenty-one days after defendants file a responsive pleading or motion to dismiss. See id.; Fed.R.Civ.P. 15(a)(2). However, when the plaintiff moves to amend after the deadline established in the scheduling order for doing so, as Plaintiff does here, Rule 16(b)(4) becomes the starting point in the Court’s analysis. CBX Techs., Inc. v. GCC Techs., LLC, No." }, { "docid": "19325282", "title": "", "text": "few weeks before the revised discovery deadline. This considerable, avoidable delay shows that Plaintiff did not make “diligent efforts” to meet the deadlines set in the Scheduling Order. See CBX Techs., Inc., 2012 WL 3038639, at *4 (citations and quotation marks omitted). Moreover, it suggests that Plaintiff did not act in good faith. See Tawwaab, 729 F.Supp.2d at 768-69. Defendants contend that Plaintiff had amassed a number of documents by December 7, 2012, three months before she filed her original Motion, Defs.’ 2d Opp’n 5, and she “had personal knowledge of the information she now claims was discovered for the first time during the depositions she took,” id. at 6. Specifically, Plaintiff alleges that she learned for the first time through the depositions that Ms. Nias “was not employed by the UMAA, but was instead an employee of the University of Maryland College Park,” PL’s Am. Mot. 3; and Ms. Nias “reported to Brodie Remington, a UMCP employee, for approval for even minor personnel issues,” id. at 4. Yet Plaintiff testified in her November 1, 2012 deposition that Ms. Nias was “paid by the State, but ... did work for the Alumni Association,” Defs.’ 2d Opp’n Ex. 4, Wonasue Dep. 60:10-12, ECF No. 50-4, and that Ms. Nias reported to Brodie Remington, id. at 125:4-7. Also, according to Defendants, as of December 7, 2012, Plaintiff had Ms. Nias’s personnel file, which showed that she was a UMCP employee, and the UMAA organization chart, which showed that Ms. Nias reported to Mr. Remington. Defs.’ 2d Opp’n 5. Again, this unnecessary delay, as well as the misrepresentation in her Amended Motion that she was unaware of these facts prior to the depositions, suggest that Plaintiff is not acting in good faith. See Tawwaab, 729 F.Supp.2d at 768-69. Additionally, Defendants insist that, in moving to amend, Plaintiff acts in bad faith because the Amended Complaint itself includes “blatant misrepresentations.” Defs.’ 2d Opp’n 7. In her Amended Complaint, Plaintiff claims that “[d]uring the time period of her employment, Plaintiff became pregnant and would require emergency services to protect her own and her unborn child’s" }, { "docid": "594587", "title": "", "text": "good cause under Rule 16(b) for failure earlier to seek leave to amend” and the Court “must evaluate prejudice to the nonmoving party ‘before a court will consider whether amendment is proper under Rule 15(a).’ ” Commerce Benefits Grp., Inc. v. McKesson Corp., 326 Fed.Appx. 369, 376 (6th Cir.2009) (quoting Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir.2003)). “Consequently the Court is permitted to examine the standard factors governing amendments under Rule 15(a) only if it is satisfied that the date for the filing of a motion for leave to amend is properly extended under the good cause provisions of Rule 16(b).” Craig-Wood v. Time Warner N.Y. Cable LLC, No. 2:10-cv-906, 2011 WL 4829687, at *2 (Oct. 6, 2011), reconsideration denied, 2012 WL 346686 (S.D.Ohio Feb. 2, 2012). The Sixth Circuit has held that, [t]he primary measure of Rule 16’s ‘good cause’ standard is the moving party’s diligence in attempting to meet the case management order’s requirements.... Another relevant consideration is possible prejudice to the party opposing the modification. Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir.2002) (internal citations and quotation marks omitted). Here, plaintiffs motion to amend first seeks to drop FedEx Express Corporation, a previously dismissed party, from the caption of the complaint. In its response brief, defendant submits that such an amendment is unnecessary because FedEx Express has already been dismissed with prejudice by Court order. The Court agrees with defendant, and finds that the proposed amendment to “remove” a previously dismissed party is wholly unnecessary. Plaintiff next seeks leave to amend her complaint to “clarify” her allegation that defendant failed to investigate possible reasonable accommodations at the FedEx Express in Akron, Ohio. The proposed amendment alleges that, “Defendant Federal Express Corporation, through their Supervisor, Greg Barkdull, further failed to investigate any possible reasonable accommodations at the FedEx Express in Akron, Ohio.” (See Proposed First Amended Complaint [Doc. No. 60-1] at 1040.) Plaintiff contends that the amendment will not prejudice defendant, nor will it “create harassment or undue delay[,]” noting that “this failure to investigate issue has been fully discussed, litigated, and discovered" }, { "docid": "11802000", "title": "", "text": "JKB-10-2112, 2012 WL 3038639, at *3 (D.Md. July 24, 2012). Thus, “once the scheduling order’s deadline for amendment of the pleadings has passed, a moving party first must satisfy the good cause standard of Rule 16(b); if the moving party satisfies Rule 16(b), the movant then must pass the tests for amendment under [Rule] 15(a).’ ” Id. (quoting Odyssey Travel Ctr., Inc. v. RO Cruises, Inc., 262 F.Supp.2d 618, 631 (D.Md.2003)); see Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir.2008). “ ‘ “[G]ood cause” means that scheduling deadlines cannot be met despite a party’s diligent efforts.’ ” CBX Techs., Inc., 2012 WL 3038639, at *4 (quoting Potomac Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 375 (D.Md. 1999) (citation omitted)). The Court focuses “less ... on the substance of the proposed amendment and more ... [on] the timeliness of the motion to amend ‘and the reasons for its tardy submission.’ ” Id. (quoting Rassoull v. Maximus, Inc., 209 F.R.D. 372, 373-74 (D.Md.2002)). Specifically, the Court considers whether the moving party acted in good faith, the length of the delay and its effects, and whether the delay will prejudice the non-moving party. Tawwaab v. Va. Linen Serv., Inc., 729 F.Supp.2d 757, 768-69 (D.Md.2010). If the Court concludes that the plaintiff had good cause for moving to amend after the deadline has passed, then, pursuant to Rule 15(a)(2), “[t]he court should freely give leave [to amend] when justice so requires.” The Court only should deny leave to amend if amendment “would prejudice the opposing party, reward bad faith on the part of the moving party, or ... amount to futility,” MTB Servs., Inc. v. Tuckman-Barbee Constr. Co., No. RDB-12-2109, 2013 WL 1819944, at *3 (D.Md. Apr. 30, 2013); see Laber v. Harvey, 438 F.3d 404, 426 (4th Cir.2006). When considering a motion for leave to amend, “the court may take into account the stage of the proceedings,” such as whether the parties have completed discovery. Skinner, 1995 WL 507264, at *2. There is no question whether Plaintiff is acting in good faith: She seeks to withdraw" }, { "docid": "10807036", "title": "", "text": "Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1216-17 (11th Cir.2001). This requirement is even less stringent than the test for party joinder, see Grayson v. K Mart Corp., 79 F.3d 1086, 1095-96 (11th Cir.1996), but it still has teeth, see Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1261 (11th Cir.2008). The modest factual showing that must be made “cannot be satisfied simply by unsupported assertions,” Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir.2010) (internal quotation marks omitted), such as those in this case. Appellants’ barebones motion for certification stated only that appellants are “similarly situated and victims of a single decision, policy or plan” to reduce Bristol-Myers’ workforce. These conclusory allegations were insufficient to warrant the certification of a collective action. C. Amendments to the Complaint There also was no abuse of discretion in the denial of Cruz’s belated motions to amend his complaint. See Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 326 (1st Cir.2008). Cruz argued his motions under Rule 15’s liberal amendment policy, which “provides that ... ‘[t]he court should freely give leave when justice so requires.’ ” Id. at 327 (quoting Fed.R.Civ.P. 15(a)(2)). Because the motions to amend came after the deadline established by the district court’s scheduling order, however, they could be granted only upon a showing of good cause, see O’Connell v. Hyatt Hotels of P.R., 357 F.3d 152, 154-55 (1st Cir.2004); Fed.R.Civ.P. 16(b)(4). “Rule 16(b)’s ‘good cause’ standard emphasizes the diligence of the party seeking the amendment.” O’Connell, 357 F.3d at 155. Partly due to his misapprehension of the correct legal standard, Cruz made minimal effort to demonstrate that good cause justified permitting an amendment. Cruz filed his first motion to amend three months after the deadline set forth in the district court’s scheduling order. The motion sought to add factual allegations re garding “a statement ... made in writing by plaintiffs immediate supervisor obtained during our efforts to prepare for the case and to comply with various information requests put forth by [defendants].” This document was evidently in plaintiffs possession, raising questions as" }, { "docid": "23452042", "title": "", "text": "cavalierly disregarded without peril.” Johnson, 975 F.2d at 610 (internal citations and quotations omitted). As we observed in Riofrio Anda, 959 F.2d at 1155, liberally granting motions to amend the pleadings — filed after a party has disregarded the scheduling order deadline — would effectively “nullif[y] the purpose of Rule 16(b)(1).” Unlike Rule 15(a)’s “freely given” standard, which focuses mostly on the bad faith of the moving party and the prejudice to the opposing party, see Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), Rule 16(b)’s “good cause” standard emphasizes the diligence of the party seeking the amendment. See Rosario-Diaz, 140 F.3d at 315; accord Leary, 349 F.3d at 906; Parker, 204 F.3d at 340. Prejudice to the opposing party remains relevant but is not the dominant criterion. See Johnson, 975 F.2d at 609. “[Undifference” by the moving party “seal[s] off this avenue of relief’ irrespective of prejudice because such conduct is incompatible with the showing of diligence necessary to establish good cause. Rosario-Diaz, 140 F.3d at 315. We review the district court’s refusal to extend a Rule 16(b) scheduling order for good cause under an abuse of discretion standard. See Vulcan Tools of P.R. v. Makita U.S.A., Inc., 23 F.3d 564, 565 (1st Cir.1994). Plaintiffs suggest that, “due to circumstances not within [their] control ... the amended Civil Action was never filed by the filing deadline.” While plaintiffs are not altogether clear on what stopped them from timely moving to amend, they appear to blame the error on a failure of communication between local counsel in Puerto Rico and lead counsel in Pennsylvania. Under the facts of this case, this excuse does not establish good cause. Cf. Rosario-Diaz, 140 F.3d at 315 (“Attorneys represent clients, and, as a general rule, an attorney’s blunder binds her client.”). Plaintiffs stipulated that they would seek to amend the complaint to include allegations against the new defendants within thirty days of the transfer. Plaintiffs were thus aware of their obligation to move to amend. Nevertheless, they waited over a year after the transfer and five months after" }, { "docid": "14443339", "title": "", "text": "benefit. That the Court considered the change sua sponte does not mean that Defendants are entitled to address it more fully. Since Defendants did not raise this argument when moving for summary judgment, the Court does not consider it now. See Nieves v. N.Y.C. Police Dep’t, 716 F.Supp.2d 299, 303 (S.D.N.Y.2010) (“A motion for reconsideration is not an opportunity for making new arguments that could have been previously advanced .... ” (internal quotation marks omitted)). Defendants also contend that the Court erred in denying their request (made in a footnote in their summary judgment reply brief) to amend the complaint by basing its ruling solely on Defendants’ diligence instead of also considering whether Plaintiffs would be prejudiced by such an amendment. To support this argument, Defendants cite the Second Circuit standard for amendment of pleadings under Rule 15(a) of the Federal Rules of Civil Procedure. However, the lenient Rule 15(a) standard must be balanced against the Rule 16(b) “good cause” standard when a scheduling order sets a deadline for amending pleadings. See Grochowski v. Phx. Constr., 318 F.3d 80, 86 (2d Cir.2003). Indeed, this Court explicitly relied on Rule 16(b)(4): “Because we are well past the December 15, 2009 deadline to amend pleadings, Defendants must show good cause.” 9 F.Supp.3d at 354 (citing Fed.R.Civ.P. 16(b)(4)); see also Jackson v. Odenat, No. 09 Civ. 5583, 2012 WL 505551, at *2-3 (S.D.N.Y. Feb. 14, 2012) (applying the Rule 16(b) “good cause” standard). The Court concluded that Defendants’ did not demonstrate diligence because their mistake in failing to plead a statute of limitations defense as to the right of publicity claim did not justify their more than three-year delay in requesting leave to amend. See 9 F.Supp.3d at 354-55. Reconsideration would be inappropriate because Defendants have not pointed to controlling authority that would change this conclusion. III. Conclusion For the foregoing reasons, Defendants’ motion for reconsideration is denied. The parties are directed to schedule a settlement conference with Magistrate Judge Gorenstein. SO ORDERED. . Notwithstanding the absence of such an assertion here, Odenat's third-party complaint alleges that Mondesir authorized Odenat to use the" }, { "docid": "20794368", "title": "", "text": "16(b), which states both that district courts must issue a scheduling order limiting the time to amend the pleadings, and that a scheduling order “may be modified only for good cause.” When a party seeks to amend a pleading after the scheduling deadline for doing so, the application of Rule 16(b)’s good-cause standard is not optional. To permit district courts to consider motions to amend pleadings under Rule 15(a) without regard to Rule 16(b) “would render scheduling orders meaningless and effectively ... read Rule 16(b) and its good cause requirement out of the Federal Rules of Civil Procedure.” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir.1998); see also Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir.2003) (“Once the scheduling order’s deadline passes, a plaintiff first must show good cause under Rule 16(b) for failure earlier to seek leave to amend before a court will consider whether amendment is proper under Rule 15(a).”); Hawthorne Land Co. v. Occidental Chem. Corp., 431 F.3d 221, 227 (5th Cir.2005), cert. denied, 549 U.S. 811, 127 S.Ct. 48, 166 L.Ed.2d 20 (2006) (applying the same approach); O’Connell v. Hyatt Hotels of P.R., 357 F.3d 152, 154-55 (1st Cir.2004) (same); Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.2000) (same); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992) (same). Sherman, 532 F.3d at 716 (emphasis in the original). Thus, where, as here, the mov-ant’s motion to amend is filed well after the deadline for amendment of pleadings in a scheduling order, this court is required to apply the “good cause” standard of Rule 16(b). Id. In Sherman, the Eighth Circuit Court of Appeals provided further clarification of the Rule 16(b) “good cause” standard: The good-cause inquiry required under Rule 16(b) is more narrow than the analysis undertaken by the district court. “The primary measure of good cause is the movant’s diligence in attempting to meet the order’s requirements.” Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir.2006); see also Fed.R.Civ.P. 16(b), advisory committee note (1983 Amendment) (“[T]he court may modify the schedule on a showing of good" }, { "docid": "11878629", "title": "", "text": "15(a) without regard to Rule 16(b) “would render scheduling orders meaningless and effectively ... read Rule 16(b) and its good cause requirement out of the Federal Rules of Civil Procedure.” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir.1998); see also Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir.2003) (“Once the scheduling order’s deadline passes, a plaintiff first must show good cause under Rule 16(b) for failure earlier to seek leave to amend before a court will consider whether amendment is proper under Rule 15(a).”); Hawthorne Land Co. v. Occidental Chem. Corp., 431 F.3d 221, 227 (5th Cir.2005), cert. denied, — U.S. -, 127 S.Ct. 48, 166 L.Ed.2d 20 (2006) (applying the same approach); O’Connell v. Hyatt Hotels of P.R., 357 F.3d 152, 154-55 (1st Cir.2004) (same); Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.2000) (same); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992) (same). Because Winco’s motion to amend was filed more than seventeen months after the established scheduling deadline for amending pleadings, the district court was required to apply Rule 16(b)’s good-cause standard in ruling on Winco’s motion. Winco argues that even if the district court was required to apply Rule 16(b), the district court’s analysis was tantamount to a good-cause finding. Were we satisfied that the substance of the district court’s ruling was in fact a good-cause analysis, giving due consideration to Winco’s diligence in attempting to comply with the scheduling deadline, we would not disapprove of a functional reading of the district court’s order; a formal citation of Rule 16(b)’s “good cause” requirement is not what counts. But as we explain below, we are not satisfied that the district court effectively engaged in a good-cause analysis as required by Rule 16(b). The good-cause inquiry required under Rule 16(b) is more narrow than the analysis undertaken by the district court. “The primary measure of good cause is the movant’s diligence in attempting to meet the order’s requirements.” Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir.2006); see also Fed.R.Civ.P. 16(b), advisory committee note (1983 Amendment) (“[T]he court may" }, { "docid": "19325279", "title": "", "text": "merits of the case.’ ” MTB Sews., 2013 WL 1819944, at *3 (quoting Next Generation Grp. v. Sylvan Learning Ctrs., LLC., No. CCB-11-0986, 2012 WL 37397, at *3 (D.Md. Jan. 5, 2012)). Rather, “the merits of the litigation” are only relevant to the Court’s ruling on a motion for leave to amend if “a proposed amendment may clearly be seen to be futile,” Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir.1980), such as “if the proposed amended complaint fails to state a claim under the applicable rules and accompanying standards,” Katyle v. Penn Nat. Gaming Inc., 637 F.3d 462, 471 (4th Cir.2011); see MTB Servs., 2013 WL 1819944, at *3. III. DISCUSSION The Scheduling Order in this case set an original deadline of July 16, 2012 for “[m]oving for joinder of additional parties and amendment of pleadings.” Scheduling Order, ECF No. 11. Notably, the Order provided that it would “not be changed except for good cause.” Id. Subsequent modifications of the Scheduling Order extended the deadline for joining parties and amending the pleadings to August 16, 2012 and the discovery deadline to February 15, 2013. See ECF Nos. 14, 16, 31, 35 & 40. Plaintiff filed her Motion for Leave to File First Amended Complaint on March 7, 2013, and her Amended Motion on April 10, 2013. Therefore, my analysis begins with whether Plaintiff had good cause for moving to amend after the deadline set by the Scheduling Order. See CBX Techs., Inc., 2012 WL 3038639, at *3; Fed.R.Civ.P. 16(b)(4). Plaintiff moves to amend based on information allegedly obtained late in discovery, including specifically “information first provided during the deposition of the Defendants on February 7 and 8, 2013,” one week before the discovery deadline. PL’s Am. Mot. 2. In defense of the late scheduling of these depositions, Plaintiff notes that “Defendants belatedly served their answers to Plaintiffs interrogatories on January 23, 2013.” PL’s Am. Mot. 3. According to Defendants, Plaintiff already has caused undue delay in this case, which has progressed too far for amendment to be granted fairly. Defs.’ 2d Opp’n 1-2. Additional context is" }, { "docid": "8795661", "title": "", "text": "the effective case management tools provided by Rule 16. Therefore, after the deadlines provided by a scheduling order have passed, the good cause standard must be satisfied to justify leave to amend the pleadings. This result is consistent with rulings of other circuits. See O’Connell v. Hyatt Hotels of Puerto Rico, 357 F.3d 152, 154-55 (1st Cir.2004); Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.2000); S & W Enters, v. South- Trust Bank of Ala., 315 F.3d 533, 536 (5th Cir.2003); Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir.2003); In re Milk Prods. Antitrust Litig., 195 F.3d 430, 437-38 (8th Cir.1999); Rosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir.1998). Fed.R.Civ.P. Rule 16(b)’s “good cause” standard focuses on the timeliness of the amendment and the reasons for its tardy-submission. Because a court’s scheduling order “ ‘is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril,’ ” Potomac Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 375 (D.Md.1999) (quoting Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D.Me.1985)), a movant must demonstrate that the reasons for the tardiness of its motion justify a departure from the rules set by the court in its Scheduling Order. The primary consideration for Rule 16(b)’s “good cause” standard is the movant’s diligence. Lack of diligence and carelessness are the “hallmarks of failure to meet the good cause standard.” W.Va. Hous. Dev. Fund v. Ocwen Tech. Xchange, Inc., 200 F.R.D. 564, 567 (S.D.W.Va.2001). “[T]he focus of the inquiry is upon the moving party’s reasons for seeking modification. If that party was not diligent, the inquiry should end.” Marcum v. Zimmer, 163 F.R.D. 250, 254 (S.D.W.Va.1995). Here, Wilson argues that he seeks to amend his counterclaims to conform them to evidence first learned in the course of discovery. (ECF No. 47-1). In particular Wilson references a production of 902 pages of documents by Plaintiffs on January 31, 2011. (Id.). Although Defendant does not identify specific pages within this production that support his new counterclaims, the implication is that" }, { "docid": "19325280", "title": "", "text": "pleadings to August 16, 2012 and the discovery deadline to February 15, 2013. See ECF Nos. 14, 16, 31, 35 & 40. Plaintiff filed her Motion for Leave to File First Amended Complaint on March 7, 2013, and her Amended Motion on April 10, 2013. Therefore, my analysis begins with whether Plaintiff had good cause for moving to amend after the deadline set by the Scheduling Order. See CBX Techs., Inc., 2012 WL 3038639, at *3; Fed.R.Civ.P. 16(b)(4). Plaintiff moves to amend based on information allegedly obtained late in discovery, including specifically “information first provided during the deposition of the Defendants on February 7 and 8, 2013,” one week before the discovery deadline. PL’s Am. Mot. 2. In defense of the late scheduling of these depositions, Plaintiff notes that “Defendants belatedly served their answers to Plaintiffs interrogatories on January 23, 2013.” PL’s Am. Mot. 3. According to Defendants, Plaintiff already has caused undue delay in this case, which has progressed too far for amendment to be granted fairly. Defs.’ 2d Opp’n 1-2. Additional context is necessary. The Court issued the original scheduling order on March 1, 2012, and Defendants served their document requests and interrogatories on June 14, 2012. Defs.’ 1st Opp’n 5. Plaintiff first served interrogatories on October 25, 2012, more than four months later and ten days after the October 15, 2012 discovery deadline in effect at that time. Id. at 5. Thereafter, at Plaintiffs request and over Defendants’ opposition, the Court extended the discovery deadline to January 15, 2012. Id. When Plaintiff asked on January 2, 2013 to depose Ms. Nias and UMAA’s corporate designee the following week, Defendants objected. Id. The parties agreed to extend the discovery deadline to February 15, 2013 to accommodate the depositions, and they agreed that Defendants’ responses to Plaintiffs interrogatories would be due January 21, 2013. Id. Thus, although Defendants’ responses were filed more than thirty days after Plaintiff served the interrogatories, they were only two days late, and it was Plaintiffs delay in serving interrogatories that occasioned her receipt of Defendants’ responses after the original discovery deadline and only a" } ]

[ { "docid": "15348579", "title": "", "text": "subsequent possession. The stipulation was agreed to after the trial court overruled the defendant’s objection to the admission of evidence of his possession of the powder. DISCUSSION Appellant contends that the trial court committed reversible error in admitting into evidence his subsequent possession of heroin on June 25, 1976. We agree. “Other-crime” evidence is not admissible to show that a defendant has a bad character or propensity to commit the crime in issue, although it may be admissible for other relevant purposes. Fed.R.Evid. 404(b). See United States v. Manafzadeh, 592 F.2d 81, 86 (2d Cir. 1979); United States v. Lyles, 593 F.2d 182, 193 (2d Cir. 1979); United States v. DeFillipo, 590 F.2d 1228, 1240-41 (2d Cir. 1979); United States v. Knuckles, 581 F.2d 305, 314 (2d Cir. 1978); United States v. O’Connor, 580 F.2d 38, 40 (2d Cir. 1978); United States v. Williams, 577 F.2d 188, 191 (2d Cir.), cert. denied, 439 U.S. 868, 99 S.Ct. 196, 58 L.Ed.2d 179 (1978); United States v. Benedetto, 571 F.2d 1246, 1248 (2d Cir. 1978); United States v. Gubelman, 571 F.2d 1252, 1254 (2d Cir.), cert. denied, 436 U.S. 948, 98 S.Ct. 2853, 56 L.Ed.2d 790 (1978). To qualify for admission the other-crime evidence must be relevant to an actual issue in the case, and its probative value on that issue must not be outweighed by its unfair prejudice to the defendant. See United States v. Manafzadeh, supra, at 86; United States v. DeFillipo, supra, at 1241; United States v. Halper, 590 F.2d 422, 432 (2d Cir. 1978); United States v. Knuckles, supra, 581 F.2d at 314; United States v. O’Connor, supra, 580 F.2d at 40-43; United States v. Williams, supra, 577 F.2d at 191; United States v. Benedetto, supra, 571 F.2d at 1248; United States v. Gubelman, supra, 571 F.2d at 1254. See also Fed.R.Evid. 403. Although this court\" has taken the “inclusionary” approach to Rule 404(b), there is no presumption that other-crime evidence is relevant. United States v. Manafzadeh, supra, at 86; United States v. DeFillipo, supra, at 1240; United States v. Halper, supra, at 432; United States v. O’Connor," } ]

[ { "docid": "11620688", "title": "", "text": "131 (2d Cir.1980). In the instant case, all of the recordings which defendant Mulligan seeks to suppress were made with the consent of a party to conversations. These recordings were not obtained by means of an unlawful physical invasion of the defendant’s premises under circumstances which would violate the Fourth Amendment. No facts have been alleged which could give rise to a claim that the videotape constituted an improper invasion of defendants’ rights. Consequently, the motion to suppress the tape recorded conversations and videotaped conversation is denied and no hearing on these issues is required. Pre-Conspiracy Crimes Mulligan has moved to preclude the government from introducing at trial evidence of a 1969 truck theft to prove an association between Mulligan and Cerasani and any other criminal acts committed by Mulligan prior to inception of the conspiracy, as charged in the indictment. The issue presented before the court is whether prior crimes are admissible to show an association between Mulligan and other defendants. Admissibility of prior crimes evidence will depend upon whether the pri- or crimes are relevant to some issue at trial, Fed.R.Evid. 404(b), and whether the probative value of such evidence outweighs its prejudicial value. Fed.R.Evid. 403. United States v. Mohel, 604 F.2d 748 (2d Cir.1979); United States v. Papadakis, 510 F.2d 287, 294 (2d Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975). Probative value is dependent on the existence of a “close parallel” between the crime charged and the acts shown. United States v. Chestnut, 533 F.2d 40 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976), including the remoteness of a conviction. United States v. Corey, 566 F.2d 429 (2d Cir.1979). In United States v. Figueroa, 618 F.2d 934, 939 (2d Cir.1980), the Second Circuit has stated that the procedure for determining admissibility depends on the grounds on which the government offers the evidence. If the evidence is offered to prove that the defendant committed the act charged in the indictment, for example, by proving identity or common scheme, the evidence may be offered during the prosecution’s" }, { "docid": "23515140", "title": "", "text": "other acts. See, e. g., United States v. Carroii, 510 F.2d 507, 509 (2d Cir. 1975), cert. denied, 426 U.S. 923, 96 S.Ct. 2633, 49 L.Ed.2d 378 (1976); 22 C. Wright & K. Graham, Federal Practice and Procedure § 5239 (1978): In cases where the incident offered is part of the conspiracy alleged in the indictment, the evidence is admissible under Rule 404(b) because it is not an “other” crime. The evidence is offered as direct evidence of the fact in issue, not as circumstantial evidence requiring an inference as to the character of the accused. Id. at 450 (footnote omitted). Since the acts were part of the conspiracy, evidence of their occurrence was admissible to prove the conspiracy, regardless of whether they were performed by the defendants or by other coconspirators. See, e. g., United States v. Araujo, 539 F.2d 287, 289 (2d Cir.), cert. denied, 429 U.S. 983, 97 S.Ct. 498, 50 L.Ed.2d 593 (1976); United States v. Papadakis, 510 F.2d 287, 294-95 (2d Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975); United States v. Costello, 352 F.2d 848, 854 (2d Cir. 1965), rev’d on other grounds, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); United States v. Bates, 600 F.2d 505 (5th Cir. 1979); United States v. Vega-Limon, 548 F.2d 1390 (9th Cir. 1977); 22 C. Wright & K. Graham, supra, § 5239, at 451. In Papadakis, for example, we approved the receipt of evidence, to prove the existence of the conspiracy, that on several occasions not charged in the indictment the defendant and others conducted themselves in a manner similar to that charged. And in Costello, we stated that the acts of others not involving the defendant directly may come in against him merely to show the existence of a conspiracy, with which he is to be linked by quite separate proof. 352 F.2d at 854. Even acts prior to the first act alleged in the indictment may be proven to show the continuing nature of the conspiracy. Id. We see no error in the district court’s receipt of" }, { "docid": "11620689", "title": "", "text": "are relevant to some issue at trial, Fed.R.Evid. 404(b), and whether the probative value of such evidence outweighs its prejudicial value. Fed.R.Evid. 403. United States v. Mohel, 604 F.2d 748 (2d Cir.1979); United States v. Papadakis, 510 F.2d 287, 294 (2d Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975). Probative value is dependent on the existence of a “close parallel” between the crime charged and the acts shown. United States v. Chestnut, 533 F.2d 40 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976), including the remoteness of a conviction. United States v. Corey, 566 F.2d 429 (2d Cir.1979). In United States v. Figueroa, 618 F.2d 934, 939 (2d Cir.1980), the Second Circuit has stated that the procedure for determining admissibility depends on the grounds on which the government offers the evidence. If the evidence is offered to prove that the defendant committed the act charged in the indictment, for example, by proving identity or common scheme, the evidence may be offered during the prosecution’s casein-chief, unless the defendant’s commission of the act is not a disputed issue. On the other hand, if the evidence is offered to prove the defendant’s knowledge or intent, the offer of similar acts evidence should await the conclusion of the defendant’s case and should be aimed at a specifically identified issue. Therefore this court will reserve decision on this issue until trial. Sequestration The government has moved for an order, pursuant to Rule 7(c) of the Local Criminal Rules, sequestering the jury for the duration of the trial. The motion is denied. The government’s request is based’ upon the likelihood of substantial prejudicial publicity and the possibility of prejudicial juror contact. Defendants oppose sequestration as onerous and prejudicial in that it would exclude significant numbers of those eligible for jury selection. The decision concerning whether a jury should be sequestered is “entrusted to the sound discretion of the trial judge.” United States v. Johnson, 584 F.2d 148, 154 (6th Cir.1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1240, 59 L.Ed.2d 469 (1979); see Holt" }, { "docid": "11893416", "title": "", "text": "fact lawful under § 608, error was committed when the court below refused to instruct the jury on this statute. Turning first to Chestnut’s argument that the evidence of other contributions was not admissible, it is settled in this Circuit that evidence of other offenses is admissible if “it is relevant for some purpose other than merely to show a defendant’s criminal character, provided that its potential for prejudicing the defendant does not outweigh its probative value.” United States v. Papadakis, 510 F.2d 287, 294 (2 Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975); see also, United States v. Gerry, 515 F.2d 130, 141 (2 Cir. 1975). Such evidence has been admitted for the purposes of showing willfulness; its probative value, determined by the trial court, is dependent on “the existence of a close parallel between the crime charged and the acts shown.” United States v. Leonard, 524 F.2d 1076, 1091 (2 Cir. 1975); see also United States v. Santiago, 528 F.2d 1130, 1134 (2 Cir. 1976). Lilly testified that he remitted three other payments to the Humphrey campaign, two personal checks to the Minnesota Democratic Campaign Committee of $10,000 and $1,450, made out pursuant to Chestnut’s instructions and mailed to him, and $12,500 in cash personally - delivered by Lilly to Chestnut at his law offices. Judge Weinfeld admitted this testimony with a limiting instruction to the jury that its relevance was confined solely to the issue of willfulness or intent; the district court repeated this restriction in its charge to the jury. Given the trial court’s cautionary instructions, we cannot find that admission of this evidence was reversible error. The “similar acts” occurred in close temporal proximity and were closely related in both subject matter and manner to the crime charged in the indictment. It was well within the trial court’s discretion to determine that the course of conduct in which Chestnut engaged with regard to the three contributions was probative of his knowledge and intent as to the transactions involving L & N, and that admission of this evidence for that limited" }, { "docid": "11620672", "title": "", "text": "being separately tried.” United States v. Cassino, 467 F.2d 610, 623 & nn. 37-39 (2d Cir.1972), cert. denied, 410 U.S. 913, 93 S.Ct. 957, 35 L.Ed.2d 276 (1973). The defendants argue that there is substantial risk that the jury may become confused and draw an improper inference that evidence admitted against one defendant supports a finding of guilt against another. However, separate trials are not required when evidence may be admissible against one defendant but not against others. United States v. Rucker, 586 P.2d at 902; United States v. Petrone, 499 F.Supp. 29, 33 (S.D.N.Y.1980). Additionally, when the crime involves a scheme, plan or enterprise, joint trials are appropriate. See United States v. Girard, 601 F.2d 69, 72 (2d Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979). Differences as to nature, degree and quantity of evidence do not preclude a joint trial. United States v. Aloi, 511 F.2d 585, 598 (2d Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975); see United States v. Lyles, 593 F.2d 182, 191-92 (2d Cir.), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979). The evidentiary spillover which concerns the defendants will be avoided by this court’s instructions to the jury. United States v. Papadakis, 510 F.2d 287, 300 (2d Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975); United States v. Moten, 564 F.2d at 628. This court is not faced with the situation existing in United States v. Kelly, 349 F.2d 720, 726, 758-59 (2d Cir.1965), in which the government introduced co-defendants’ post-conspiracy testimony and letter against a third defendant. The court ruled that the introduction-of hearsay evidence against the third defendant mandated severance at that time. Defendants’ reliance on Kelly is misplaced. Moreover, the defendants’ allegations of prejudice must be balanced “against the prejudice to the public interest caused by the time, expense, delay, and duplication of trials.” United States v. Aloi, 449 F.Supp. 698, 746 (E.D.N.Y.1977). The defendants have demonstrated no prejudice beyond that which is inevitably present when a serious charge of criminal" }, { "docid": "23119338", "title": "", "text": "be able to rule readily with the assistance of the recent cases in this circuit that have spelled out when similar act evidence is admissible. E. g., United States v. Mohel, 604 F.2d 748, at 751-752 (2d Cir. 1979); United States v. DeVaughn, 601 F.2d 42 at 45 (2d Cir. 1979); United States v. Williams, 596 F.2d 44, 50-51 (2d Cir. 1979); United States v. Danzey, 594 F. 2d 905, 910-15 (2d Cir. 1979); United States v. Lyles, 593 F.2d 182, 193-94 (2d Cir.), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979); United States v. Manafzadeh, 592 F.2d 81, 86 (2d Cir. 1979); United States v. O’Connor, 580 F.2d 38, 40-43 (2d Cir. 1978). See also United States v. Halper, 590 F.2d 422, 431-32 (2d Cir. 1978). G. Appellant Rafael Flores Valencia Appellant Flores raises three additional arguments on appeal: (1) insufficient evidence of his guilt under the conspiracy count; (2) error in submitting the substantive count to the jury; and (3) failure to sever his case. We have already dealt with the first claim, at least by implication. In Part I-D, supra, we reversed the conspiracy conviction, but remanded for retrial in connection with the Cambindo conspiracy. At the same time, we noted that the appellant Flores’s links to that conspiracy might constitute a “single act” under United States v. Torres, supra, and therefore might be legally insufficient for a conspiracy conviction. Appellant Flores also argues that Count IX, charging that he, together with “Lucho Plata” and Arturo Figueroa, “did knowingly and intentionally distribute and possess with intent to distribute a quantity of cocaine, to wit, approximately % kilogram,” should not have been submitted to the jury, apparently for three reasons — first, because there was no evidence that he distributed cocaine or aided and abetted Rodriguez’s distribution; second, because there was no evidence that he aided and abetted Plata and Figueroa in the possession of three-fourths kilogram with intent to distribute; and third, because there was a material variance between the indictment and the proof, for appellant possessed only one-eighth kilogram. Although we have" }, { "docid": "17654057", "title": "", "text": "Rule of Evidence 403 provides in full: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. . The Government’s theory of the relevance of the prior arrest, and the district court’s rationale for admitting the evidence, are somewhat obscured by the record. In the district court’s pretrial order of June 21, 1979, the evidence was ruled admissible under Rule 404(b) to show plan or scheme. Given the time period separating the two arrests, and the Government’s failure to provide any evidence of a continuing criminal relationship between Brunson and Foskey, the earlier arrest was not probative of plan or scheme. See United States v. Burkley, 591 F.2d 903, 920 (D.C.Cir.1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1516, 59 L.Ed.2d 782 (1979) (“[A] common scheme or plan embrac[es] the commission of two or more crimes so related to each other that proof of the one tends to establish the other.”); accord, United States v. Manafzadeh, 592 F.2d 81, 88 (2d Cir. 1979) (distinguishing “ ‘a connected or inseparable transaction,’ in which all the crimes figured” from “entirely separate, later transactions”). The Government apparently realized that it had “used that phrase [plan or scheme] rather loosely” and decided at trial that the 1976 arrest should instead be offered on the issues of identity and intent. Tr. at 15. But identity was not an issue at trial, and prior crimes evidence may not be introduced on issues that are not contested. See United States v. James, 555 F.2d 992, 1000 & n.46 (D.C.Cir.1977), and cases cited therein. Foskey was unquestionably one of the men in the car; the only issue was whether he had the intent to possess the drugs secreted under the gas flap. Cf. United States v. DeVaughn, 601 F.2d 42, 46 (2d Cir. 1979); United States v. Day, 591 F.2d 861, 872-73 (D.C.Cir.1978) (cases in which identity was at issue). . In reviewing the record, we" }, { "docid": "5223456", "title": "", "text": "24 L.Ed.2d 610 (1970) (footnote omitted); See United States v. Droms, 566 F.2d 361, 363 (2d Cir.1977). Here, the acts were charged in the conjunctive: the jury was instructed that it could find the existence of a scheme if it found “beyond a reasonable doubt that a defendant breached fiduciary duties in furtherance of the unlawful or fraudulent purposes alleged in the indictment”, namely, “bribes and self-enrichment”. Thus, the jury’s verdict establishes that it found beyond a reasonable doubt that the funds were misappropriated for both bribery and self-enrichment. We have determined that there is sufficient evidence in the record to support a finding of self-enrichment. As a result, defendants’ convictions were valid, and inquiring into the question of whether the alleged use of the fund for illicit payoffs to labor officials violates the wire fraud statute is unnecessary. See Turner v. United States, 396 U.S. at 420, 90 S.Ct. at 654. Therefore, the convictions on counts one through fifteen are affirmed. Evidence of $30,000 Bribe Defendants’ next ground for reversal is that the admission of the evidence concerning Stuckey’s payment, at Abrams’ direction, of $30,000 to Irving Cotier in return for Cotier’s promise to arrange for peaceful relations with Teamsters Local 807 was so prejudicial that they were denied a fair trial. Defendants argue that the bribery evidence, which they claim was never connected to the proceeds of the cash sales, constitutes evidence of “other crimes” and, as such, is prohibited by Fed.R.Evid. 404(b). Rule 404(b) prohibits the admission of evidence of other crimes for the purpose of showing criminal character. See, e.g., United States v. Papadakis, 510 F.2d 287, 294 (2d Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975). However, such evidence may be admissible for other purposes “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). For the evidence to be admissible, it “must be relevant to an actual issue in the case”, United States v. Mohel, 604 F.2d 748, 751 (2d Cir.1979), and the unfair prejudice to the defendant may not" }, { "docid": "804431", "title": "", "text": "outweighs its prejudicial value. Fed.R.Evid. 403. United States v. Mohel, 604 F.2d 748, 751 (2d Cir. 1979); United States v. Lyles, 593 F.2d 182, 193 (2d Cir.), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979). Although these prior crimes would appear to be admissible to prove knowledge and intent of Vasquez-Castro and Pacheco, an assessment of the relevance and probative and prejudicial value of this evidence must await completion of the defendants’ presentation. United States v. Figueroa, 618 F.2d 934, at 938 (2d Cir. 1980); United States v. Danzey, 594 F.2d 905, 912 (2d Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2179, 60 L.Ed.2d 1056 (1979). The more difficult issue is whether the likelihood that such evidence might be held admissible against Vasquez-Castro and Pacheco to show knowledge or intent warrants severance of Hart and Egan at this time in order to prevent any potential prejudicial spillover. The Court of Appeals has specified, The extent of prejudice to a co-defendant from evidence of one defendant’s pri- or acts depends on an assessment of how that evidence might affect the jury’s consideration of a co-defendant’s guilt, despite limiting instructions. United States v. Figueroa, supra, at 946. In United States v. Rosenwasser, 550 F.2d 806 (2d Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 73, 54 L.Ed.2d 83 (1977), the admission of prior crimes evidence against a co-defendant was held not to prejudice unduly the trial of the defendant. The court stated, Generally, when similar act evidence is admitted in a multiple defendant trial, it is clear that the co-defendant claiming prejudice could not have been involved in the similar offense. In those circumstances, there is little doubt that a cautionary instruction is sufficient to preserve the co-defendant’s right to a fair trial. Id. at 808 (citations omitted). The court noted that because of the circumstances of the prior offense by the co-defendant, the jury could have inferred that the defendant himself was involved. However, the trial court’s limiting instructions were held sufficient to prevent any unfairness to the defendant. In United States v. Figueroa, supra the" }, { "docid": "23119337", "title": "", "text": "conspiracies, the activities of the particular conspirators involved, and any indication of agreement or connections between the parties. Considering these factors, as we have done above, there is no reason to conclude that the Baltimore conspiracy for which Moreno Ortiz was convicted was a part of the Cambindo enterprise. We also note that appellant’s twelve-year sentence meted out in the court below is to run concurrently with the fifteen years already received on the Maryland conviction. F. Appellant Federico Gonzalez Appellant Gonzalez objected to three offers of similar act evidence: Rivas’s testimony as to transactions before the start of the alleged conspiracy (# 1), Pacifico Rodriguez’s testimony that he gave Gonzalez opium to sell on consignment (# 16), and the introduction, by stipulation preserving rights, of evidence of small sales of cocaine by Gonzalez in 1975. Since Gonzalez is entitled to a new trial in connection with his relationship to the Cambindo enterprise, it is unnecessary for us to comment on these claims, for we have no reason to doubt that the trial court will be able to rule readily with the assistance of the recent cases in this circuit that have spelled out when similar act evidence is admissible. E. g., United States v. Mohel, 604 F.2d 748, at 751-752 (2d Cir. 1979); United States v. DeVaughn, 601 F.2d 42 at 45 (2d Cir. 1979); United States v. Williams, 596 F.2d 44, 50-51 (2d Cir. 1979); United States v. Danzey, 594 F. 2d 905, 910-15 (2d Cir. 1979); United States v. Lyles, 593 F.2d 182, 193-94 (2d Cir.), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979); United States v. Manafzadeh, 592 F.2d 81, 86 (2d Cir. 1979); United States v. O’Connor, 580 F.2d 38, 40-43 (2d Cir. 1978). See also United States v. Halper, 590 F.2d 422, 431-32 (2d Cir. 1978). G. Appellant Rafael Flores Valencia Appellant Flores raises three additional arguments on appeal: (1) insufficient evidence of his guilt under the conspiracy count; (2) error in submitting the substantive count to the jury; and (3) failure to sever his case. We have already dealt" }, { "docid": "22274303", "title": "", "text": "The bag and its contents were never found. For virtually all the critical events — the conversations concerning heroin, Lebron’s display of the heroin, and Acosta’s throwing the paper bag on the street, the only witness was Aponte. Only the fact of the two telephone calls and the identification of the voices of the informant and Figueroa on the tape recordings were testified to by another DEA agent. The informant was identified by name, and his last known address disclosed, but he was not located by either side and did not testify. The defendants called no witnesses. The principal claim of all three appellants concerns the introduction into evidence of a 1968 conviction of Acosta for selling heroin. Since that claim presents different issues with respect to Acosta and his co-defendants, separate consideration is required. Acosta In a series of recent cases, this Court has endeavored to clarify the standards that apply and the procedure to be followed when the Government offers evidence of a defendant’s similar crimés or acts. To be admissible the evidence must be relevant to some disputed issue in the trial, Fed.R.Evid. 404(b), and its probative value must not be substantially outweighed by the risk of unfair prejudice. Fed.R.Evid. 403; United States v. Mohel, 604 F.2d 748 (2d Cir. 1979); United States v. Lyles, 593 F.2d 182 (2d Cir. 1979); United States v. Manafzadeh, 592 F.2d 81 (2d Cir. 1979); United States v. O’Connor, 580 F.2d 38 (2d Cir. 1978); United States v. DeVaugn, 579 F.2d 225 (2d Cir. 1978); United States v. Benedetto, 571 F.2d 1246 (2d Cir. 1978). The procedure for determining admissibility depends on the grounds on which the Government offers the evidence. If the evidence is offered to prove that the defendant committed the act charged in the indictment, for example, by proving identity or common scheme, the evidence may be offered during the prosecution’s case-in-chief, unless the defendant’s commission of the act is not a disputed issue. On the other hand, if the evidence is offered to prove the defendant’s knowledge or intent, the offer of similar acts evidence should await" }, { "docid": "22274304", "title": "", "text": "must be relevant to some disputed issue in the trial, Fed.R.Evid. 404(b), and its probative value must not be substantially outweighed by the risk of unfair prejudice. Fed.R.Evid. 403; United States v. Mohel, 604 F.2d 748 (2d Cir. 1979); United States v. Lyles, 593 F.2d 182 (2d Cir. 1979); United States v. Manafzadeh, 592 F.2d 81 (2d Cir. 1979); United States v. O’Connor, 580 F.2d 38 (2d Cir. 1978); United States v. DeVaugn, 579 F.2d 225 (2d Cir. 1978); United States v. Benedetto, 571 F.2d 1246 (2d Cir. 1978). The procedure for determining admissibility depends on the grounds on which the Government offers the evidence. If the evidence is offered to prove that the defendant committed the act charged in the indictment, for example, by proving identity or common scheme, the evidence may be offered during the prosecution’s case-in-chief, unless the defendant’s commission of the act is not a disputed issue. On the other hand, if the evidence is offered to prove the defendant’s knowledge or intent, the offer of similar acts evidence should await the conclusion of the defendant’s case and should be aimed at a specifically identified issue. This enables the trial judge to determine whether the issue sought to be proved by the evidence is really in dispute and, if so, to assess the probative worth of the evidence on this issue against its prejudicial effect. United States v. Danzey, 594 F.2d 905 (2d Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2179, 60 L.Ed.2d 1056 (1979); United States v. Halper, 590 F.2d 422 (2d Cir. 1978); United States v. Benedetto, supra; United States v. Leonard, 524 F.2d 1076, 1092 (2d Cir. 1975), cert. denied, 425 U.S. 958, 96 S.Ct. 1737, 48 L.Ed.2d 202 (1976). Despite the frequency with which these principles have been expressed and the reversals that have occurred when they have not been followed, United States v. Mohel, supra; United States v. Manafzadeh, supra; United States v. O’Connor, supra; United States v. DeVaugn, supra, the Government persists in jeopardizing convictions by offering evidence of similar crimes or acts either in disregard of the standards" }, { "docid": "5223458", "title": "", "text": "outweigh the probative value of the evidence, id.; United States v. De Vaughn, 601 F.2d 42, 45 (2d Cir.1979); Fed.R.Evid. 403. In short, while not all evidence of other crimes is proscribed, it must be examined carefully to ensure that its relevance to an issue in the case will not be outweighed by a jury’s tendency to convict a defendant on the basis of his prior crimes. See United States v. Manafzadeh, 592 F.2d 81, 86 (2d Cir.1979). The incident involving the $30,000 payment to Cotier was offered as evidence of the existence of the fraudulent scheme alleged in the indictment. Defendants, maintaining as they do that the government’s evidence failed to show a connection between the bribe and the cash fund, argue that the admission of the evidence was unfairly prejudicial because, in contrast to the other evidence presented at trial of small bribes and gratuities, the $30,000 payment and its clandestine circumstances were so dramatic that they may have caused the jury to convict the defendants on the basis of the labor bribe rather than on the wire fraud scheme with which they were charged. In weighing the probative value of the bribe evidence against its prejudicial effect, we agree with defendants that the bribe would not be relevant unless it emanated directly or indirectly from the cash proceeds. However, we take their argument further: if the bribe was connected to the secret cash fund, then the evidence was relevant to show that the fund existed, that defendants had at least one reason for accumulating the fund, and that they had knowledge of the fund, and all of these would be valid and proper grounds for admitting the bribe evidence under Fed.R. Evid. 404(b). Examining these bases for admission, we conclude that, if the bribe came directly or indirectly from the fund, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. We recognize that the “unfair prejudice” contemplated by Fed.R.Evid. 403 is that the jury may base its decision on an improper basis, e.g., United States v. Benton, 687 F.2d 1052," }, { "docid": "22863405", "title": "", "text": "of error in allowing the Government to bring out that Debbie Frank McElroy, one of the victims of Ochs’ extortion, had been a prostitute. It was her decision to quit the oldest profession that led to her falling into default, the consequent threats, and her return to Studio One to earn money to repay Ochs. Again we see no possible merit in the claim that it was error to allow numerous debtors to testify that Ochs instructed them to mail remittances to “Gambino” at a Bronx address. If Ochs chose to make false use of the name of a well-known underworld figure to instill fear, he must bear the consequences. United States v. Cirillo, supra, 468 F.2d at 1240; United States v. Zito, 467 F.2d 1401, 1405 (2 Cir. 1972). Ochs next complains of the trial court’s denial of his motion to sever the tax counts under F.R.Cr.P. 14. To obtain reversal, Ochs must show that the refusal to sever was so unfairly prejudicial as to constitute an abuse of discretion. As we have recently noted, “ ‘[W]e are reluctant to overturn a conviction for denial of a motion for severance unless there is a showing of substantial prejudice. . . . It is not sufficient merely to show that the accused would have had a better chance for acquittal at a separate trial.’ ” United States v. Lyles, 593 F.2d 182, 189 (2 Cir. Jan. 31, 1979) (quoting United States v. Stirling, 571 F.2d 708, 733 (2 Cir.), cert. denied, — U.S. -, 99 S.Ct. 93, 58 L.Ed.2d 116 (1978)); see also United States v. Corr, 543 F.2d 1042, 1052 (2 Cir. 1976); United States v. Papadakis, 510 F.2d 287, 300-01 (2 Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975). We find no “substantial prejudice” here. Most, if not all, of the evidence on the extortion and obstruction of justice counts would have been admissible on the evasion of taxes count, and the joinder of the latter was not prejudicial as to the former. See United States v. McGrath, supra, 558 F.2d at 1106." }, { "docid": "21608064", "title": "", "text": "left work at Ninth Avenue and 48th Street. He stated that he lived at that time on 48th Street, near Ninth Avenue. Colon claimed to have no memory as to whether he had talked to Detective White. Nevertheless, he acknowledged, in response to leading questions on cross-examination, the possibility that he might have been approached by White or asked about buying drugs. Colon was convicted. In this appeal, he argues that the district court committed reversible error by admitting the evidence of his prior participation in heroin sales. Colon also argues that the evidence should not have been mentioned during the government’s opening or admitted during the government’s case-in-chief. The government contends that because the evidence was admissible to prove Colon’s intent, its use of the evidence was proper. DISCUSSION A. Admissibility of the Other Acts Evidence We share appellant’s concern about the danger of unfair prejudice associated with the use of similar acts evidence. In determining whether to allow admission of such evidence, district courts must exercise great care to ensure that juries are not permitted to conclude that because a defendant has committed a similar crime before, he or she therefore has a criminal propensity sufficient to justify conviction in the case at hand. See United States v. Mohel, 604 F.2d 748, 751 (2d Cir.1979) (quoting United States v. O’Connor, 580 F.2d 38, 43 (2d Cir.1978), and United States v. Manafzadeh, 592 F.2d 81, 86 (2d Cir.1979)). Upon careful review of the record, we conclude that the district court in this case did not safeguard against this danger, and the judgment of conviction must be reversed. Fed.R.Evid. 404(b) provides that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. “Under the ‘inclusionary’ or ‘positive’ approach to other acts evidence that controls in this Circuit, other acts or crimes are admissible under Rule 404(b) to prove matters other" }, { "docid": "22889126", "title": "", "text": "v. Sutton, supra, 426 F.2d at 1207-08; 7 J. Wigmore, supra § 2148 (authentication by contents). These same facts also reveal the probative value of the exhibit as a record of the transactions testified to by Amato between Amato and the appellants. Thus we hold that the document was sufficiently authenticated, was of significant probative value, and was therefore properly admitted into evidence by the trial court. VII. Use of “Other Crimes” Evidence and Instructions Thereon. The appellants contend that it was improper to allow into evidence certain testimony and documentary proof which tended to show that Natale and Russo had been engaged in several usurious transactions both before and during the period of the conspiracy here charged. The appellants were not, of course, charged with usury at this trial. Therefore, evidence of their usurious transactions should not have been admitted if it were introduced solely to show that the defendants had criminal characters. United States v. Papadakis, 510 F.2d 287, 294 (2d Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975). But if this proof of “other crimes” was used at trial for any valid purpose other than to show the appellants’ criminal character, then it should have been admitted so long as its probative value outweighed its potential prejudice. United States v. Torres, 519 F.2d 723, 727 (2d Cir. 1975); United States v. Papadakis, supra. The Government contends that this evidence was admissible to show the “background and development” of the conspiracy to use extortionate means to collect credit extensions. See United States v. Torres, supra; United States v. Colasurdo, 453 F.2d 585, 591 & n. 3 (2d Cir. 1971), cert. denied, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972). We agree that this evidence helps to establish that Natale and Russo had continuing debtor-creditor relations with Amato and others, relations of a type which could not be enforced legally, and therefore might well have been grounded in extra-legal methods of enforcement. Thus we have no trouble in concluding that the evidence of usurious behavior was relevant to the proof of a" }, { "docid": "15348580", "title": "", "text": "v. Gubelman, 571 F.2d 1252, 1254 (2d Cir.), cert. denied, 436 U.S. 948, 98 S.Ct. 2853, 56 L.Ed.2d 790 (1978). To qualify for admission the other-crime evidence must be relevant to an actual issue in the case, and its probative value on that issue must not be outweighed by its unfair prejudice to the defendant. See United States v. Manafzadeh, supra, at 86; United States v. DeFillipo, supra, at 1241; United States v. Halper, 590 F.2d 422, 432 (2d Cir. 1978); United States v. Knuckles, supra, 581 F.2d at 314; United States v. O’Connor, supra, 580 F.2d at 40-43; United States v. Williams, supra, 577 F.2d at 191; United States v. Benedetto, supra, 571 F.2d at 1248; United States v. Gubelman, supra, 571 F.2d at 1254. See also Fed.R.Evid. 403. Although this court\" has taken the “inclusionary” approach to Rule 404(b), there is no presumption that other-crime evidence is relevant. United States v. Manafzadeh, supra, at 86; United States v. DeFillipo, supra, at 1240; United States v. Halper, supra, at 432; United States v. O’Connor, supra, 580 F.2d at 40; United States v. Benedetto, supra, 571 F.2d at 1248. “[Cjaution and judgment are called for, and a trial judge faced with an other crimes evidence problem should require the Government to explain why the evidence is relevant and necessary.” Unit ed States v. O'Connor, supra, 580 F.2d at 43, quoted in United States v. Lyles, supra, at 196; United States v. Manafzadeh, supra, at 86-87. The fear, of course, is that “the accused might be convicted because of his participation in the other crime rather than because he is guilty beyond a reasonable doubt of the crime alleged.” United States v. Manafzadeh, supra, at 86. In the instant case, the Government argues that the other-crime evidence was admissible to prove DeVaughn’s identity as the person present at the Lounge on June 22 when the exchange occurred and to corroborate Agent Buckley’s testimony that a heroin-quinine exchange had occurred at that time. Appellant contends that both identity and corroboration would have been established by his offer early in the trial to" }, { "docid": "5223457", "title": "", "text": "of the evidence concerning Stuckey’s payment, at Abrams’ direction, of $30,000 to Irving Cotier in return for Cotier’s promise to arrange for peaceful relations with Teamsters Local 807 was so prejudicial that they were denied a fair trial. Defendants argue that the bribery evidence, which they claim was never connected to the proceeds of the cash sales, constitutes evidence of “other crimes” and, as such, is prohibited by Fed.R.Evid. 404(b). Rule 404(b) prohibits the admission of evidence of other crimes for the purpose of showing criminal character. See, e.g., United States v. Papadakis, 510 F.2d 287, 294 (2d Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975). However, such evidence may be admissible for other purposes “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). For the evidence to be admissible, it “must be relevant to an actual issue in the case”, United States v. Mohel, 604 F.2d 748, 751 (2d Cir.1979), and the unfair prejudice to the defendant may not outweigh the probative value of the evidence, id.; United States v. De Vaughn, 601 F.2d 42, 45 (2d Cir.1979); Fed.R.Evid. 403. In short, while not all evidence of other crimes is proscribed, it must be examined carefully to ensure that its relevance to an issue in the case will not be outweighed by a jury’s tendency to convict a defendant on the basis of his prior crimes. See United States v. Manafzadeh, 592 F.2d 81, 86 (2d Cir.1979). The incident involving the $30,000 payment to Cotier was offered as evidence of the existence of the fraudulent scheme alleged in the indictment. Defendants, maintaining as they do that the government’s evidence failed to show a connection between the bribe and the cash fund, argue that the admission of the evidence was unfairly prejudicial because, in contrast to the other evidence presented at trial of small bribes and gratuities, the $30,000 payment and its clandestine circumstances were so dramatic that they may have caused the jury to convict the defendants on the basis of the labor bribe" }, { "docid": "21608065", "title": "", "text": "not permitted to conclude that because a defendant has committed a similar crime before, he or she therefore has a criminal propensity sufficient to justify conviction in the case at hand. See United States v. Mohel, 604 F.2d 748, 751 (2d Cir.1979) (quoting United States v. O’Connor, 580 F.2d 38, 43 (2d Cir.1978), and United States v. Manafzadeh, 592 F.2d 81, 86 (2d Cir.1979)). Upon careful review of the record, we conclude that the district court in this case did not safeguard against this danger, and the judgment of conviction must be reversed. Fed.R.Evid. 404(b) provides that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. “Under the ‘inclusionary’ or ‘positive’ approach to other acts evidence that controls in this Circuit, other acts or crimes are admissible under Rule 404(b) to prove matters other than the defendant’s criminal propensity.” United States v. Ortiz, 857 F.2d 900, 903 (2d Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1352, 103 L.Ed.2d 820 (1989). The standards by which a district court is to assess the admissibility of other acts evidence under Rule 404(b) are now well established. See, e.g., Huddleston v. United States, 485 U.S. 681, -, 108 S.Ct. 1496, 1501-02, 99 L.Ed.2d 771 (1988). First, the trial court must determine whether the evidence is offered for a proper purpose, namely, a purpose other than to prove the defendant’s bad character or criminal propensity. Examples of such proper purposes include those listed specifically in Rule 404(b), among these being intent. If the evidence is offered for such a proper purpose, the district court then must determine whether “[t]he offered evidence [is] relevant, per Rules 401 and 402, to an issue in the case, and [whether] the evidence ... satisfies] the probative-prejudice balancing test of Fed.R.Evid. 403.” Ortiz, 857 F.2d at 903. Finally, if requested to do so, the court must give an" }, { "docid": "804430", "title": "", "text": "(2d Cir. 1977) (concurrent sentences for conspiring to rob a bank and aiding and abetting robbery). Congress has evinced an intent to punish drug offenses heavily. See United States v. Marotta, 518 F.2d 681, 685 (9th Cir. 1975). Accordingly, the separate charges of conspiracy and attempt to import controlled substances are not multiplicious. C. Admissibility of Prior Act Evidence and Motions for Severance Defendants Pacheco and Vasquez-Castro seek to preclude the Government from introducing evidence of their prior crimes. Vasquez-Castro was previously arrested off the coast of Florida on May 5, 1978 on board a vessel containing 50,000 pounds of marijuana, and was subsequently deported. On December 8, 1977, Pacheco was arrested on board a ship containing eleven tons of marijuana off the coast of North Carolina. He pled guilty to importation of marijuana and remains on probation from that offense. The admissibility of prior crimes evidence against Pacheco and Vasquez-Castro will depend on whether the prior crimes are relevant to some issue at trial, Fed.R.Evid. 404(b), and whether the probative value of such evidence outweighs its prejudicial value. Fed.R.Evid. 403. United States v. Mohel, 604 F.2d 748, 751 (2d Cir. 1979); United States v. Lyles, 593 F.2d 182, 193 (2d Cir.), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979). Although these prior crimes would appear to be admissible to prove knowledge and intent of Vasquez-Castro and Pacheco, an assessment of the relevance and probative and prejudicial value of this evidence must await completion of the defendants’ presentation. United States v. Figueroa, 618 F.2d 934, at 938 (2d Cir. 1980); United States v. Danzey, 594 F.2d 905, 912 (2d Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2179, 60 L.Ed.2d 1056 (1979). The more difficult issue is whether the likelihood that such evidence might be held admissible against Vasquez-Castro and Pacheco to show knowledge or intent warrants severance of Hart and Egan at this time in order to prevent any potential prejudicial spillover. The Court of Appeals has specified, The extent of prejudice to a co-defendant from evidence of one defendant’s pri- or acts depends on" } ]

[ { "docid": "23221145", "title": "", "text": "under our scenario, would be receiving property, i.e., payment of their claims, the unsecured creditors senior to them could block cramdown, which prohibits junior claims from receiving anything until the target of the cram-down has been paid in full. . Of course, another way to \"fix” the Section 510(b) impairment, without having to pay Cardinal’s claim in full, would be to reclassify it as a Class III claim. This again would render Section 510(b) nugatory, however, as it would give Cardinal voting power in the very unsecured class from which Congress expressly intended to exclude holders of claims such as Cardinal’s, conferring unwarranted leverage on an investor to the detriment of genuine creditors who did not bargain for the investment risk that underlies the Class V claims. See discussion supra at II.A. .The plan as originally proposed would also violate Section 1123(a)(4), which prohibits discrimination among creditors within a given class, as it purports to deprive only Cardinal of any recovery on its action against ASK while letting other members of the class receive stock for their claims. To this extent, the plan also fails to comply with applicable provisions of Title 11, as required by Section 1129(a)(2). As indicated infra, the plan amendment cures this problem as well. . The proponent of a plan may modify such plan at any time before confirmation, but may not modify such plan so that such plan as modified fails to meet the requirements of sections 1122 and 1123 of this title. After the proponent of a plan files a modification of such plan with the court, the plan as modified becomes the plan. 11 U.S.C. § 1127(a). The proponent of a modification shall comply with section 1125 of this title with respect to the plan as modified. 11 U.S.C. § 1127(c). . The modification itself cures the defect in classification and impairment discussed supra. If approved, the modification will comport with the requirements of Sections 1122 and 1123. . [T]he modified plan need not be resubmitted to creditors and interest holders if the court finds that they are not adversely affected. M." } ]

[ { "docid": "19962847", "title": "", "text": "Corp., 363 B.R. 388, 396 (Bankr.D.Del.2007) (“A plan of reorganization has no effect without a court’s confirmation.”). Section 1129(b) allows the bankruptcy court to confirm a plan over the objection of a certain class as long as the proponent of the plan confirms that “the plan does not discriminate unfairly, and is fair and equitable, with respect to each class of claims or interests that is impaired under, and has not accepted, the plan.” 11 U.S.C. § 1129(b). The confirmation process under section 1129(b) is known as a “cram down” process for imposing a plan on a dissenting class. Bank of Am. Nat’l Trust & Sav. Ass’n v. 208 N. LaSalle St. P’ship, 526 U.S. 434, 441, 119 S.Ct. 1411, 143 L.Ed.2d 607 (1999). A “cram down” can be fair and equitable to a group of unsecured creditors “only if the allowed value of the claim is to be paid in full,” or, in the alternative, if the plan does not offer a junior claimant any property before each unsecured claimant receives full satisfaction of its allowed claim. Id. This is known as the “absolute priority rule.” Id. (internal quotations and citations omitted). An essential “corollary of the absolute priority rule” holds “that a senior class cannot receive more than full compensation for its claims.” In re Exide Techs., 303 B.R. 48, 61 (Bankr.D.Del.2003), quoting In re MCorp Financial, Inc., 137 B.R. 219, 225 (Bankr.S.D.Tex.1992), appeal dismissed, 139 B.R. 820 (S.D.Tex.1992). Here, Defendants argue that the Plan would not be “fair and equitable” to the equity interests who received nothing under the Plan if under the Plan the Trustee were allowed to recover far more than the amount of the Trust Beneficiaries’ outstanding claims. Defendants insist that their argument is supported by In re MCorp Financial, Inc. There, the bankruptcy court refused to confirm a “cram down” plan under section 1129(b) which allocated the undetermined value of a lawsuit to junior creditors. 137 B.R. at 235. The estimated value of the suit was greater the 100% of the amount of the junior creditors’ claims. Id. The court found that it" }, { "docid": "1142803", "title": "", "text": "juniors may begin to receive distributions from MCorp Financial before Shearson’s claim is paid. Shearson objects to the possibility that the juniors might be paid something before it is paid. During the confirmation hearing, the proponents made a correction to the plans to ensure that the juniors would receive no distributions from an estate until all senior claims were paid, rather than merely all senior bondholders, as the plans appeared to say. This change solved Shearson’s intra-debtor problem but not its inter-debtor one. The senior bondholders are not affected by this problem because their notes are the liability of both MCorp and MCorp Financial. (2) Principal Mutual and the Insurers. The plans provide for a contingent claims reserve. That mechanism currently reserves full pro rata amounts for contested claims but nothing for disallowed claims. For example, Principal Mutual’s full pro rata share of $18 million is protected in the reserve, while the insurers’ disallowed claim is not. Once this court determines how much of Principal Mutual’s claim to allow, the plans will reserve only the pro rata amount of that figure. Both creditors desire to amend the plans to require reservation of the pro rata amount of their full claims in the contingent claims reserve until final, non-appealable orders have been entered. (3) Voting. The class of the juniors was the only one actively to reject the MCorp and MCorp Financial plan. Equity was assumed to reject the MCorp plan. All classes voted in favor of the MCorp Management plan. At the confirmation hearing there was some confusion over the effect of Principal Mutual’s vote. Principal Mutual is a member of the senior class, but its vote was not counted because its claim is contested. The testimony at the hearing revealed that even if Principal Mutual was allowed to vote its full claim, rather than no claim or its pro rata distribution on its full claim, the class would still have voted to accept. The only potential problem was Principal Mutual’s motion to treat the seniors as insiders, and not to count their votes for acceptance purposes. While the court" }, { "docid": "1142864", "title": "", "text": "four percent. (5) Shearson. Finally, Shearson objects to its different treatment. It is a creditor of MCorp only. See supra § 3.B.I. Because these plans are not substantively consolidated, there is a possibility that the juniors may be fully paid from assets of MCorp Financial before Shearson is fully paid from the assets of MCorp. Once again, the creditor with a particular characteristic wants to be treated as well as other creditors without that limitation. The process of liquidation can be conducted to eliminate this objection to a possibility. The objection will be denied. 9. Conclusion. This “proceeding” has become a spectacle of expensive litigation. Errors in judgment were made by honest bankers trying to build a complex business in the midst of mistaken fiscal and regulatory policy. The bankers’ ability to work their way out of the potential losses was destroyed by a sudden regional economic decline. The existing losses and consequent disruptions were compounded by an arrogant and inept intrusion of the government. Into the debris rushed litigious rascals, whose idea of the public administration of civil justice is a cross between a poker game and the battle of the Somme. As is usually the ease, the quiet, competent, cooperative actions of the great many are obscured by those few others. After the complexities of the MCorp empire have been seized, partitioned, valued, claimed, analyzed, and marshalled, the second set of plans that has been proposed addresses the legal technicalities and the economic realities reasonably and fairly. It will be approved. In the process of adjudicating the issues raised during the slow trip to this point, the court has had to examine the holding company’s predecessor’s tax returns for years as early as 1968, pension plans originating in the 1950s, office building maintenance costs in Dallas, distinctions between the FDIC corporate and FDIC receiver, economies of scale in trust department operations, data processing systems development, among others. The plans for ending the litigation, liquidating the assets, and distributing the funds are as reasonable a solution to this historic problem as is plausible. The plans accord with the expectations" }, { "docid": "14560999", "title": "", "text": "nohtransferable units in a separate trust; and (2) is not fair and equitable with respect to Class 15, the MMP Equity Interests, as certain classes senior to Class 15 may receive more than the allowed amount of their claim. 24. A limited objection was filed by Karl Butz, Jr. requesting that Debtors demonstrate that the stipulated amount of his Employee Stock Plan claim as set forth in Exhibit 8 to the plan was calculated consistently with other claimants in the same class. Counsel for Debtors announced in court that Butz's concerns were resolved prior to the hearing and that Butz would not be pursuing his objection. (See Trial Transcript, 11/13/91, pp. 11, 12.) 25. MCorp Class 15, consisting of the senior equity interests in MCorp (primarily Shearson) voted to reject the MCorp plan. The Debtors then requested confirmation of the MCorp plan in accordance with § 1129(b) of the Bankruptcy Code, the “cramdown” provisions. (See Request for Confirmation of the Chapter 11 Plan of MCorp Pursuant to Section 1129(b) of the Bankruptcy Code, Docket No. 1947.) Confirmation 26. Proponents of a plan have the burden of proving by a preponderance of the evidence that all of the requirements of § 1129(a) have been met. Home Savings Ass’n v. Woodstock Assocs. I, Inc. (In re Woodstock Assocs. I, Inc.), 120 B.R. 436, 453 (Bankr.N.D.Ill.1990); In re Rusty Jones, Inc., 110 B.R. 362, 373 (Bankr. N.D.Ill.1990); In re Arnold, 80 B.R. 806, 807 (Bankr.M.D.La.1987). Proponents’ burden of proof under § 1129(b), the cram-down provision, calls for clear and convincing evidence. In re Rusty Jones, Inc., 110 B.R. 362, 373 (Bankr.N.D.Ill.1990); In Future Energy Corp., 83 B.R. 470 (Bankr. S.D.Ohio 1988); In re Agawam Creative Marketing Assocs. Inc., 63 B.R. 612 (Bankr.D.Mass.1986); In re Stoffel, 41 B.R, 390 (Bankr.D.Minn.1984). 27. In addition to considering the objections of creditors, the court has a mandatory independent duty to determine whether the plan has met all of the requirements necessary for confirmation. Matter of Williams, 850 F.2d 250 (5th Cir.1988); In re Holthoff, 58 B.R. 216 (Bankr. E.D.Ark.1985). 28. The bankruptcy court must consider the entire" }, { "docid": "1142801", "title": "", "text": "The plans project no distributions to equity. The juniors’ distributions are to come from the proceeds as the non-cash assets are liquidated; these values, costs, and discounts show a probable net present value of $6,352,000. The realization of that amount will be affected by the accuracy of Ernst & Young’s evaluation, the eventual size of Principal Mutual’s recovery, underestimation of professional fees, and market changes. A. The FDIC Settlement. The linchpin of the agreement among the proponents involves a modified version of the settlement achieved between the FDIC and the seniors. The plans provide for a distribution of $25,815,000 to the FDIC on the effective date, with an additional distribution worth a present value of $7,239,000 during the pendency of the liquidating trusts. The $7 million represents the 9.02% share of the expected liquidation of the non-cash assets on March 31, 1993. The $33,054,000 distribution to the FDIC is offset by the seniors having limited their recovery on an undisputed prior claim of $354 million to a distribution that has a net present value of $319,150,000. After having waited four years for any distribution on their ordinary senior debt, the senior bondholders conceded enough of their claim to fund a settlement with the FDIC; it was clear to them this spring that until the FDIC litigation was resolved no progress could be made and that they would lose more in foregone interest during the coming years than the current price for peace with the FDIC. This concession enabled the debtors and the committee to support the FDIC settlement. B. Technical Aspects. Without reproducing the plans, some technical aspects of them are pertinent to the objections. (1) Shearson as a Senior Claimant. In addition to its equity holdings, Shearson has a senior claim that is solely the obligation of MCorp. Because the estates have not been consolidated in substance, the number of estates that are liable for a creditor’s claim may affect distributions. For example, if Shearson’s claim against MCorp is not paid before all of the other senior claimants against MCorp Financial receive their distributions, it is possible that the" }, { "docid": "1142795", "title": "", "text": "Mutual: Principal Mutual is an Iowa insurance company that became a mortgage lender to MCorp’s now defunct landlord; it is now the landlord of the old Mercantile Center, a complex of buildings in Dallas that served as MCorp’s headquarters. MCorp rejected the leases in the bankruptcy. At the moment, Principal Mutual asserts claims of about $53 million. This bundle of claims has been the subject of a lengthy trial of the merits, but this court has not rendered a decision. The Insurers: These companies, including Corporate Officers and Directors Assurance Ltd. and A.C.E. Insurance Company, insured the directors and officers of the banks for their professional responsibility. While the FDIC has threatened suit against them, none has been filed. A settlement between the FDIC and the insurers has been reported in the range of $39 million. The insurers’ claim for a contingent indemnity was denied by the bankruptcy court, and their appeal has recently come up from the bankruptcy court. Shearson: Shearson Lehman Brothers is the largest holder of MCorp money market preferred shares. This is the most senior class of equity, and it is entitled to a distribution from the estates after the junior bonds are paid. Shearson’s claim is for $117.5 million. Shearson has a working arrangement with the junior bondholders. 3. The Path to the Plans. After numerous extensions, the debtors filed a series of disclosure statements and plans in 1991. The bankruptcy court approved the third proposed disclosure statement, after revisions. The plan was for the debtors to liquidate the estates. The bankruptcy court denied confirmation at the start of 1992. The court concluded that the plan’s limit of $2 billion in contested claims to $120 million was an arbitrary use of the bankruptcy code’s procedure for estimating claims. See In re MCorp Financial, 137 B.R. at 226. After the official unsecured creditors’ committee expressed a desire for a global settlement with the FDIC, the debtors responded that the years of litigation had eroded the goodwill between the FDIC and them. At this point, some creditors holding senior bonds formed an ad hoc senior bondholders group" }, { "docid": "1142862", "title": "", "text": "an administrative claim based on a fraudulent transfer from an entity of which it is not yet even a creditor. On a technical point, further, the transfers were approved by the bankruptcy court, and Principal Mutual failed to object. Cf. Port O’Call Inv. Co. v. Blair, 538 F.2d 849, 851 (9th Cir.1976) (per curiam). The recent addition of this claim shows that Principal Mutual is not content with putting sand in the gears — it wants to throw in an occasional wrench. This claim has no substance; it is a secondary claim, the claim against another non-bankrupt company. At best Principal Mutual is a creditor of a creditor of a debtor. It will not be allowed. (8) Injunction. Principal Mutual objects to the plans because of provisions that bar the filing of further claims against the estates. See 11 U.S.C. §§ 524 & 1141(d)(3) (1988). The proponents argue that these measures are necessary for an orderly liquidation of the estates. See 11 U.S.C. § 1123(a)(5) (1988). After over four years of notorious, multistage litigation, all claims of every type should have been brought. It is difficult to imagine a valid future claim against these estates. The injunctive provisions, however, are narrowly tailored to pre-petition and administrative claims. See ¶ 13.10 MCorp Plan. The discharge statutes have not been violated. (4) Postr-Confirmation Interest. The plans provide for post-confirmation interest on the seniors’ claims at a rate of four percent. The seniors argue that a drafting mistake was made, and the rate should be seven percent. A plan proponent does not need leave of the court to modify a plan before confirmation. In re One Canadaigua Properties, Inc., 140 B.R. 616 (Bankr.W.D.N.Y.1992). Since the creditors that oppose the higher rate already voted against the plan, the change is not material in the bankruptcy process itself. See In re American Solar King Corp., 90 B.R. 808, 824 (Bankr.W.D.Tex.1988). The discussion of the economics of the plans, however, has assumed the lower rate, and the court has no desire to add to the complexity of this case. The post-confirmation interest rate will remain at" }, { "docid": "1142812", "title": "", "text": "and particular factors used in applying the standard. The juniors argue, however, that the fair and equitable standard has the specific meaning assigned those words in the Bankruptcy Code. See In re AWECO, Inc., 725 F.2d 293 (5th Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 182 (1984). The code used those words as a term of art that meant that senior interests are entitled to full priority over junior interests. Id. at 298. Because no junior receives more value than a senior claimant, the settlement absolutely meets that particular invocation of the phrase “fair and equitable.” Next, .the juniors insist that the settlement must meet a higher standard because it is part of the plans rather than an independent settlement. See id. Whether the settlement is proposed during pre-confir-mation proceedings or contemporaneously as part of a plan is entirely beside the point. These estates have paid more money in settlements before these plans were ever proposed than the attacked settlement distributes to the FDIC. Of course, using a different standard in plan-connected settlements than in independent pre- or post-plan settlements lacks an economic, legal, or rational basis. If a settlement is essential to the plan and if it treats one class better than its statutory position, a higher standard may be necessary, but only to the extent of protecting senior creditors’ rights. This is not an issue in this case. See Aweco, 725 F.2d at 298. B. Law of the Case. The argument has been made that the bankruptcy court’s findings in rejecting confirmation of the earlier plan has established law of the case about the value of the FDIC litigation. This is wrong. First, the bankruptcy court did not rule on the merits of the FDIC litigation, but rather it was concerned with the arbitrary estimation that the debtors proposed. See In re MCorp Financial, 137 B.R. at 225-26. Second, the disapproval of a plan is an interlocutory decision that can be revised by the trial court as changes in the facts, evidence, and law may suggest. More important, what matters to this court in" }, { "docid": "14560998", "title": "", "text": "regardless of whether they are true leases under the Bankruptcy Code. (See Trial Transcript, 11/13/91, Comments and Stipulation of Counsel, pp. 46, 51.) 21. Mr. & Mrs. Andrews, pro se shareholders, objected to the plan(s) alleging that they are disproportionately harsh to shareholders. They propose that a percentage of distributions to senior creditors, governmental agencies, and professionals should be allocated to shareholders. Mr & Mrs. Andrews failed to appear or present any evidence at the trial on confirmation. 22. One Alamo Center and CCNB Lenders merely reserved their rights to object to the plan in the event that the settlements of their claims were not approved by this court. These reservations are now moot as the settlements were approved on November 12, 1991. (See Orders Approving Compromise of Controversy, Docket Nos. 2017 & 2018.) 23. Shearson objected to the plan claiming that the plan: (1) unfairly discriminated against equity interests in favor of creditors, since the creditors were to receive transferable units in certain trusts, while shareholders (if Shearson voted for the plan) would receive nohtransferable units in a separate trust; and (2) is not fair and equitable with respect to Class 15, the MMP Equity Interests, as certain classes senior to Class 15 may receive more than the allowed amount of their claim. 24. A limited objection was filed by Karl Butz, Jr. requesting that Debtors demonstrate that the stipulated amount of his Employee Stock Plan claim as set forth in Exhibit 8 to the plan was calculated consistently with other claimants in the same class. Counsel for Debtors announced in court that Butz's concerns were resolved prior to the hearing and that Butz would not be pursuing his objection. (See Trial Transcript, 11/13/91, pp. 11, 12.) 25. MCorp Class 15, consisting of the senior equity interests in MCorp (primarily Shearson) voted to reject the MCorp plan. The Debtors then requested confirmation of the MCorp plan in accordance with § 1129(b) of the Bankruptcy Code, the “cramdown” provisions. (See Request for Confirmation of the Chapter 11 Plan of MCorp Pursuant to Section 1129(b) of the Bankruptcy Code, Docket No." }, { "docid": "1142802", "title": "", "text": "$319,150,000. After having waited four years for any distribution on their ordinary senior debt, the senior bondholders conceded enough of their claim to fund a settlement with the FDIC; it was clear to them this spring that until the FDIC litigation was resolved no progress could be made and that they would lose more in foregone interest during the coming years than the current price for peace with the FDIC. This concession enabled the debtors and the committee to support the FDIC settlement. B. Technical Aspects. Without reproducing the plans, some technical aspects of them are pertinent to the objections. (1) Shearson as a Senior Claimant. In addition to its equity holdings, Shearson has a senior claim that is solely the obligation of MCorp. Because the estates have not been consolidated in substance, the number of estates that are liable for a creditor’s claim may affect distributions. For example, if Shearson’s claim against MCorp is not paid before all of the other senior claimants against MCorp Financial receive their distributions, it is possible that the juniors may begin to receive distributions from MCorp Financial before Shearson’s claim is paid. Shearson objects to the possibility that the juniors might be paid something before it is paid. During the confirmation hearing, the proponents made a correction to the plans to ensure that the juniors would receive no distributions from an estate until all senior claims were paid, rather than merely all senior bondholders, as the plans appeared to say. This change solved Shearson’s intra-debtor problem but not its inter-debtor one. The senior bondholders are not affected by this problem because their notes are the liability of both MCorp and MCorp Financial. (2) Principal Mutual and the Insurers. The plans provide for a contingent claims reserve. That mechanism currently reserves full pro rata amounts for contested claims but nothing for disallowed claims. For example, Principal Mutual’s full pro rata share of $18 million is protected in the reserve, while the insurers’ disallowed claim is not. Once this court determines how much of Principal Mutual’s claim to allow, the plans will reserve only the" }, { "docid": "1142846", "title": "", "text": "shareholders’ equity or the seniors’ bond principal. The juniors want to use the seniors’ capital in a risky venture for four years without compensation or even consideration of the alternative earning power of that capital otherwise employed. The path of the juniors’ argument slips quickly into silliness. If opportunity cost is not to be taken into account, then the estates should sit on their $407 million in assets for as long as it takes for the interest to accrue to the point that everybody could be paid. By their logic, the code would prohibit liquidation until interest accrued on the estate’s assets to pay everybody a distribution all the way down to equity, 8. Confirmation of the Plans. Courts approve plans if they comply with the applicable provisions of the bankruptcy code, including good faith and disclosure requirements, acceptance requirements, and equal treatment and priority requirements. 11 U.S.C. § 1129(a) (1988). All of these requirements are met, except that each of the impaired classes in a plan did not vote to accept the plan. The juniors are an impaired class because under the plans the holders of that class of investment security will not have their claims fully paid. The juniors as a class voted to reject both the MCorp and MCorp Financial plans, and the equity classes have been presumed to reject the MCorp plan; therefore, the additional requirement must be met that the court evaluate the plans to ascertain that (a) there are sensible financial explanations for the treatment of the claims and assets and especially that (b) there was no impermissible collusion between other claimants, trustees, or debtors to the injury of the impaired class. 11 U.S.C. §§ 1129(a)(8) & 1129(b) (1988). A. Forced Acceptance. The code allows approval of the plan despite the objections of the impaired class if “the plan does not discriminate unfairly [against the rejecting class], and is fair and equitable” to the rejecting class. 11 U.S.C. § 1129(b)(1) (1988). When the objecting class consists of unsecured claims, to meet the fair-and-equitable standard the plan must not allow distributions to the holders of" }, { "docid": "1142796", "title": "", "text": "is the most senior class of equity, and it is entitled to a distribution from the estates after the junior bonds are paid. Shearson’s claim is for $117.5 million. Shearson has a working arrangement with the junior bondholders. 3. The Path to the Plans. After numerous extensions, the debtors filed a series of disclosure statements and plans in 1991. The bankruptcy court approved the third proposed disclosure statement, after revisions. The plan was for the debtors to liquidate the estates. The bankruptcy court denied confirmation at the start of 1992. The court concluded that the plan’s limit of $2 billion in contested claims to $120 million was an arbitrary use of the bankruptcy code’s procedure for estimating claims. See In re MCorp Financial, 137 B.R. at 226. After the official unsecured creditors’ committee expressed a desire for a global settlement with the FDIC, the debtors responded that the years of litigation had eroded the goodwill between the FDIC and them. At this point, some creditors holding senior bonds formed an ad hoc senior bondholders group with its own counsel. It pursued a settlement. In the fall of 1992, the senior group agreed with the FDIC that all litigation would be abandoned mutually and the FDIC would be paid $32 million. Initially, neither the debtors nor the creditor’s committee supported the settlement because of the cash cost to the estates. At the beginning of this year, the seniors and the debtors presented plans to the bankruptcy court. This court withdrew the reference of the case to the bankruptcy court for the purpose of considering whether to approve the disclosure statements and to confirm the plans. As progress was being made in some negotiations, the court began requiring frequent status conferences with counsel. After a few months, at the suggestion of the creditors’ committee in open court and on the record, the court announced it would mediate. No objection was heard. Over several days in two segments, the court met with principals from the major parties, except Principal Mutual, whose principals declined to participate. The meetings were with all sides represented by" }, { "docid": "1142863", "title": "", "text": "claims of every type should have been brought. It is difficult to imagine a valid future claim against these estates. The injunctive provisions, however, are narrowly tailored to pre-petition and administrative claims. See ¶ 13.10 MCorp Plan. The discharge statutes have not been violated. (4) Postr-Confirmation Interest. The plans provide for post-confirmation interest on the seniors’ claims at a rate of four percent. The seniors argue that a drafting mistake was made, and the rate should be seven percent. A plan proponent does not need leave of the court to modify a plan before confirmation. In re One Canadaigua Properties, Inc., 140 B.R. 616 (Bankr.W.D.N.Y.1992). Since the creditors that oppose the higher rate already voted against the plan, the change is not material in the bankruptcy process itself. See In re American Solar King Corp., 90 B.R. 808, 824 (Bankr.W.D.Tex.1988). The discussion of the economics of the plans, however, has assumed the lower rate, and the court has no desire to add to the complexity of this case. The post-confirmation interest rate will remain at four percent. (5) Shearson. Finally, Shearson objects to its different treatment. It is a creditor of MCorp only. See supra § 3.B.I. Because these plans are not substantively consolidated, there is a possibility that the juniors may be fully paid from assets of MCorp Financial before Shearson is fully paid from the assets of MCorp. Once again, the creditor with a particular characteristic wants to be treated as well as other creditors without that limitation. The process of liquidation can be conducted to eliminate this objection to a possibility. The objection will be denied. 9. Conclusion. This “proceeding” has become a spectacle of expensive litigation. Errors in judgment were made by honest bankers trying to build a complex business in the midst of mistaken fiscal and regulatory policy. The bankers’ ability to work their way out of the potential losses was destroyed by a sudden regional economic decline. The existing losses and consequent disruptions were compounded by an arrogant and inept intrusion of the government. Into the debris rushed litigious rascals, whose idea of the" }, { "docid": "14560994", "title": "", "text": "are subordinated to other unsecured claims (the “Senior Claims”). Claims against both MCorp and MCorp Financial will receive distributions from the assets of both. Trial Testimony of Bartholow, 11/13/91. 16. The plan provides for an initial cash distribution 30 days after confirmation in addition to establishment, at that time, of the contested claims reserve. Thereafter, interim distributions are to occur quarterly upon liquidation of non-cash assets and as contested claims are resolved. The interim distribution is to be implemented through the creation of three liquidating trusts. Additionally, the proceeds of any recovery from pending litigation with the FDIC in excess of certain thresholds is to be distributed to junior creditors. The plan further provides that MCorp and MCorp Financial will transfer legal title to their causes of action to the Litigation Trust, for which a single litigation trustee will be named by the Trust Board. The Litigation Trustee will pursue the causes of action of MCorp and MCorp Financial under the direction of the Trust Board. The plan provides for the establishment of three Litigation Reserves to finance the Debtors’ expenses of litigating various contested claims and affirmative recovery actions against third parties, including the FDIC. All existing shares of preferred and common stock of MCorp and MCorp Financial will be canceled and these two corporations will be dissolved under applicable state corporate law. See Revised Third Proposed Plan, Docket No. 1652. Trial Testimony of Bartholow, 11/13/91, pp. 60, 62-65, 67-74. Objections and Rejections 17. Several objections to confirmation of the Debtors’ plan were filed, including objections filed by Karl T. Butz, Jr., Principal Mutual Life Insurance Company (“Principal Mutual”), FDIC, Shearson Lehman Hutton, Inc. (“Shearson”), and Mr. & Mrs. Andrews, individual pro se shareholders. In addition, two limited objections were filed: one by the CCNB Lenders and the other by the One Alamo Center Lenders. The Creditors’ Committee, Mercantile-Safe Deposit & Trust Company and Fidelity Management & Research Co. all filed re sponses in support of confirmation of the Debtors’ plan. (See Docket Nos. 1861, 1864, 1865, 1866, 1873, 1874, 1886, 1936, 1942, 1957.) 18. The FDIC objected to" }, { "docid": "14560995", "title": "", "text": "Reserves to finance the Debtors’ expenses of litigating various contested claims and affirmative recovery actions against third parties, including the FDIC. All existing shares of preferred and common stock of MCorp and MCorp Financial will be canceled and these two corporations will be dissolved under applicable state corporate law. See Revised Third Proposed Plan, Docket No. 1652. Trial Testimony of Bartholow, 11/13/91, pp. 60, 62-65, 67-74. Objections and Rejections 17. Several objections to confirmation of the Debtors’ plan were filed, including objections filed by Karl T. Butz, Jr., Principal Mutual Life Insurance Company (“Principal Mutual”), FDIC, Shearson Lehman Hutton, Inc. (“Shearson”), and Mr. & Mrs. Andrews, individual pro se shareholders. In addition, two limited objections were filed: one by the CCNB Lenders and the other by the One Alamo Center Lenders. The Creditors’ Committee, Mercantile-Safe Deposit & Trust Company and Fidelity Management & Research Co. all filed re sponses in support of confirmation of the Debtors’ plan. (See Docket Nos. 1861, 1864, 1865, 1866, 1873, 1874, 1886, 1936, 1942, 1957.) 18. The FDIC objected to the plan in an original objection and a supplement, on the basis that the plan: (1) violates the “best interests of creditors’ ” test; (2) improperly implements § 502(c) of the Code; (3) improperly allows creditors with claims against two or more Debtors to receive recoveries from more than one estate; (4) improperly leaves the task of investigating preferences in the hands of insiders; (5) unfairly discriminates against the claims of certain unsecured creditors, including the FDIC; (6) improperly classifies the FDIC with other unsecured creditors, including insiders; (7) fails to equitably subordinate the claims of insiders; (8) violates § 1129(a)(10) since not one impaired class has accepted the plan (exclusive of the voting of insiders); (9) violates § 1126(c) as Debtors fail to meet the standards for acceptance of the plan; and (10) violates § 1129(a)(8) since not all classes have accepted the plan. 19. Principal Mutual objected to the plan on grounds that the plan: (1) improperly implements § 502(c) as they provide for the estimation of contested claims regardless of the applicability" }, { "docid": "3420603", "title": "", "text": "being treated so that the dissenting class of impaired unsecured claims is not being discriminated against unfairly, the plan may be confirmed if the impaired class of unsecured claims receives less than 100 cents on the dollar (or nothing at all) as long as no class junior to the dissenting class receives anything at all.”). As a result, we will apply the plain meaning of the statute. Under this reading, the statute would be violated because the Plan would give property to Class 12, which has claims junior to those of Class 6. This finding does not end our consideration of this appeal, as AWI makes further arguments regarding exceptions to the absolute priority rule. b. Transfers of Bankruptcy Distributions Between Creditors and Equity Interest Holders Second, AWI contends that Class 7 may distribute the property it will receive un der the Plan to Class 12 without violating the absolute priority rule. AWI derives this result from application of the so-called “MCorp-Genesis” rule, which is based on a line of cases where creditors were allowed to distribute their proceeds from the bankruptcy estate to other claimants without offending section 1129(b). See SPM, 984 F.2d 1305 (permitting senior secured creditors to share bankruptcy proceeds with junior unsecured creditors while skipping over priority tax creditors in a Chapter 7 liquidation); Genesis Health, 266 B.R. at 602, 617-18 (allowing senior secured lenders to (1) give up a portion of their proceeds under the reorganization plan to holders of unsecured and subordinated claims, without including holders of punitive damages claims in the arrangement, and (2) allocate part of their value under the plan to the debtor’s officers and directors as an employment incentive package); In re MCorp Fin., Inc., 160 B.R. 941, 948 (S.D.Tex.1993) (permitting senior unsecured bondholders to allocate part of their claim to fund a settlement with the FDIC over the objection of the junior subordinated bondholders). The District Court rejected this argument, and found that the MCorp-Genesis line of cases was distinguishable. It began its analysis with SPM, a First Circuit opinion cited by both the MCorp and Genesis Health courts" }, { "docid": "14561039", "title": "", "text": "of such plan. 5 Collier on Bankruptcy, ¶ 1129.03, p. 1129-94 (15th ed. 1991). 105. If former stockholders’ interests are eliminated, a valuation is required to make sure that the senior classes of claims are not being provided for more than in full. If former shareholders’ interests are impaired and a class of creditors is provided for more than in full, the plan will not be confirmed. Conversely, for a plan to be confirmed when stockholders are eliminated, creditors must not be provided for more than in full. See, e.g., Klee, All You Ever Wanted to Know About Cram Down Under the Bankruptcy Code, 53 Am.Bankr. L.J. 133, 148, 149, 166 (1979); See In re Future Energy Corp., 83 B.R. 470, at 495 (Bankr.S.D.Ohio 1988) wherein that court rejected the argument made by the debtors here, and held that the overpayment of senior creditors is violative of the fair and equitable standard; In re Walat Farms, Inc., 70 B.R. 330, 335 (Bankr.E.D.Mich.1987). 106. The court finds that the terms of the MCorp plan violate § 1129(b) in that it is not fair and equitable to equity interests. The plan includes a provision which establishes no upper limit on the amount that junior creditors of the Debtors (who are senior to the rejecting equity class) may receive. Trial Testimony of Bartholow, 11/15/91, p. 41; Bartholow Dep., p. 52. This is due to the nature of a particular asset allocated to the Junior Creditors — a lawsuit against the FDIC in the Northern District of Texas in which a summary judgment as to liability has been obtained by Debtors, MCorp and MCorp Financial, against the FDIC. Damages remain to be determined. These could be in excess of $327 million, plus interest, but an addition of this much would yield 100% of principal, and in all likelihood 100% of principal plus interest to Junior Creditors. MCorp argues that a large judgment is unlikely, and is subject to appeal, and that collectability is uncertain. However, the Junior Creditors bargained forcefully in anticipation of a substantial recovery. Relatively simple plan language allocating to equity holders" }, { "docid": "1142861", "title": "", "text": "claims reserve of $24.6 million. Chemical Bank and Shearson object that their claims for attorney’s fees are not included in the reserve. The court has yet to rule on those claims, but the record suggests serious doubts about their merits. Additionally, these claims are small enough that if they are allowed by the bankruptcy court, the estates will have sufficient funds to pay them after the initial distributions. Principal Mutual objects to the treatment of its recently-filed $16 million administrative claim. This claim duplicates, the claim in another MCorp-related case before this court. The case is about the transfer of assets to the debtors from MCorp Properties, a wholly-owned non-debtor subsidiary of a debtor. Principal Mutual may become a creditor of Properties, but only if this court finds that it can enforce a sub-lease against Properties, which was a co-tenant with MCorp in one of the buildings in the complex that formerly served as MCorp’s headquarters. The amount of the claim is highly speculative and extremely contingent. Principal Mutual does not have standing to assert an administrative claim based on a fraudulent transfer from an entity of which it is not yet even a creditor. On a technical point, further, the transfers were approved by the bankruptcy court, and Principal Mutual failed to object. Cf. Port O’Call Inv. Co. v. Blair, 538 F.2d 849, 851 (9th Cir.1976) (per curiam). The recent addition of this claim shows that Principal Mutual is not content with putting sand in the gears — it wants to throw in an occasional wrench. This claim has no substance; it is a secondary claim, the claim against another non-bankrupt company. At best Principal Mutual is a creditor of a creditor of a debtor. It will not be allowed. (8) Injunction. Principal Mutual objects to the plans because of provisions that bar the filing of further claims against the estates. See 11 U.S.C. §§ 524 & 1141(d)(3) (1988). The proponents argue that these measures are necessary for an orderly liquidation of the estates. See 11 U.S.C. § 1123(a)(5) (1988). After over four years of notorious, multistage litigation, all" }, { "docid": "1142804", "title": "", "text": "pro rata amount of that figure. Both creditors desire to amend the plans to require reservation of the pro rata amount of their full claims in the contingent claims reserve until final, non-appealable orders have been entered. (3) Voting. The class of the juniors was the only one actively to reject the MCorp and MCorp Financial plan. Equity was assumed to reject the MCorp plan. All classes voted in favor of the MCorp Management plan. At the confirmation hearing there was some confusion over the effect of Principal Mutual’s vote. Principal Mutual is a member of the senior class, but its vote was not counted because its claim is contested. The testimony at the hearing revealed that even if Principal Mutual was allowed to vote its full claim, rather than no claim or its pro rata distribution on its full claim, the class would still have voted to accept. The only potential problem was Principal Mutual’s motion to treat the seniors as insiders, and not to count their votes for acceptance purposes. While the court denied that motion, under Principal Mutual’s best scenario of its getting to vote the full $53 million claim and the seniors not getting to vote the necessary two-thirds dollar amount acceptance might still have been reached. An insider is someone connected to or in a •position of authority with the debtor. 11 U.S.C. § 101(31) (Supp. IV 1992). An insider’s acceptance does not count. 11 U.S.C. § 1129(a)(10) (1988). To the extent that the seniors’ position as a co-proponent of the plan involved a working relationship with the debtors, that relationship was the paradigm of arms-length bargaining, the true test of lack of insider status. See Cimino v. Writer Corp., 125 B.R. 293 (Bankr.D.Colo.1991). The seniors are not insiders of the debtors, and the senior class voted for the plan. 5. The FDIC Settlement. When the creditors are arranged in the priorities set in the bankruptcy code and common law, the available funds pay the claims through the seniors but barely. Specifically, there is a margin of about $6 million in assets beyond the seniors’" }, { "docid": "1142788", "title": "", "text": "Opinion on ConfiRmation HUGHES, District Judge. 1. Introduction. After four years of complex bankruptcy litigation, the prospect of a vitalizing reorganization disappeared long ago. The debtors’ estates are mere shells holding assets to distribute to their creditors. The debtors, creditors committee, and senior bondholders have proposed plans to liquidate those assets, without converting the case formally to a liquidation proceeding. A critical element of the plans is a settlement between the senior bondholders and the Federal Deposit Insurance Corporation that resolves all of the claims and counterclaims among the regulatory agency, debtors, and related entities. An analysis of the plans under the code, facts, and economics reveals that they, including the settlement, are in the best interests of the creditors, follow the law, and maximize the value of the estates’ assets. The plans will be confirmed. 2. Background. In confirming a plan, the court must look only at the plan’s effect on the assets as they exist today; the court cannot judge the plan by comparison to actions that could or should have been taken in the past. The hard-fought, twisted past of these debtors may well have been full of missed opportunities for better results than are now offered, but only what is now possible can form a plan today. The only way the plans can be tested is by comparison to the present alternatives. Knowing how the estates have arrived at this point is, however, a useful context for the confirmation analysis. A. The Bankruptcies. Mercantile Bank of Dallas became a holding company that owned a group of separate banks. By the early 1980s, it had evolved into MCorp, owning twenty-five banks and five other kinds of subsidiaries. The collapse of oil prices at the end of 1985 resulted in a parallel collapse in real estate. These twin economic shifts put a fatal strain on the banking system in Texas that was already suffering from excess capacity and desperate speculation. In the 1980s approximately one-third of Texas banks failed. MCorp was struggling to complete its absorption of Southwest Bancshares, another multi-bank holding company that had been near failing." } ]

[ { "docid": "22700600", "title": "", "text": "reduces its protection to a phantom, for the crime is considered so vagrant as to have been committed in any district where any one of the conspirators did any one of the acts, however innocent, intended to accomplish its object. The Government may, and often does, compel one to defend at a great distance from any place he ever did any act because some accused confederate did some trivial and by itself innocent act in the chosen district. Circumstances may even enable the prosecution to fix the place of trial in Washington, D. C., where a defendant may lawfully be put to trial before a jury partly or even wholly made up of employees of the Government that accuses him. Cf. Frazier v. United States, 335 U. S. 497. When the trial starts, the accused feels the full impact of the conspiracy strategy. Strictly, the prosecution should first establish prima jade the conspiracy and identify the conspirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States, 332 U. S. 539, 559, all practicing lawyers know to be unmitigated fiction. See Skidmore v. Baltimore & Ohio R. Co., 167 F. 2d 54. The trial of a conspiracy charge doubtless imposes a heavy burden on the prosecution, but it is an especially difficult situation for the defendant. The hazard from loose application of rules of evidence is aggravated where the Government institutes mass trials. Moreover, in federal practice there is no rule preventing conviction" } ]

[ { "docid": "22876766", "title": "", "text": "included” in the constitutional guarantee. Pointer v. State of Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). The Government argues that however this may stand as a matter of good sense, Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), and decisions of this court cause it to stand otherwise as a matter of law; these decisions, it argues in substance, have created a conclusive presumption that the jury will follow a proper instruction to consider a confession only against the confessor and to ignore its significance as to other defendants. We do not read Delli Paoli as going so far. Indeed, as was immediately noticed, the novelty of the decision lay not in the result but in the agreement of the five Justices in the majority and the four dissenters in refusing to consider an instruction as inevitably sufficient, cf. Blumenthal v. United States, 332 U.S. 539, 559, 68 S.Ct. 248, 92 L.Ed. 154 (1947), thereby implicitly recognizing that there may be situations in which admission of a confession implicating co-defendants would be prejudicial in spite of proper instruction. See Note, Developments in the Law-Criminal Conspiracy, 72 Harv. L.Rev. 920, 990 (1959). The majority defined the issue as being “whether, under all the circumstances, the court’s instructions to the jury provided * * * sufficient protection” against misuse of the confession; determination of that issue depended on (1) “whether the instructions were sufficiently clear,” as Judge Mishler’s certainly were in this case, and (2) “whether it was reasonably possible for the jury to follow them.” 352 U.S. at 239, 77 S.Ct. at 299. The Court noted five factors, the combination of which was thought to warrant an affirmative answer to the second question in Delli Paoli’s case. Ours differs in a number of significant respects. The conspiracy charged was not “so simple in its character that the part of each defendant in it was easily understood,” 352 U.S. at 241, 77 S.Ct. at 299; three separate conspiracy counts and seven substantive counts were sent to the jury. Here" }, { "docid": "8765905", "title": "", "text": "United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). The episodes we have reviewed supply the necessary minimum of evidence. United States v. Cadillac Overall Supply Co., 568 F.2d 1078 at 1086-87 (5th Cir., decided February 28, 1978). Consolidated also reminds us that guilt, even in a conspiracy, remains individual and is not a matter of mass application. Kotteakos v. United States, 328 U.S. 750, 772, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). But the Kotteakos Court also recognized that “when many conspire, they invite mass trial by their conduct.” Id. at 773, 66 S.Ct. at 1252. As only Consolidated and two other individual defendants went to trial, it was not a mass trial in the usual sense even though much of the evidence directly related only to other conspirators. The evidence not directly involving Consolidated, it argues, was not only irrelevant but prejudicial. The evidence does not show Consolidated to have been a major conspirator, but neither does it show Consolidated to have been a major producer of cartons. Considering the size of Consolidated and the nature of the conspiracy, we deem it irrelevant that Consolidated did not know all the other conspirators, or have knowledge of all the transactions in which it had no immediate interest. It is well understood that a conspirator need not know all the other conspirators, nor have direct contact with them. Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947); United States v. Varelli, 407 F.2d 735, 742 (7th Cir. 1972), cert. denied, 405 U.S. 1040, 92 S.Ct. 1311, 31 L.Ed.2d 581; United States v. Braverman, 522 F.2d 218, 222 (7th Cir. 1975), cert. denied, 423 U.S. 985, 96 S.Ct. 392, 46 L.Ed.2d 302. In Blumenthal, 332 U.S. at 556-57, 68 S.Ct. at 256, the Court explains: [I]t is most often true, especially in broad schemes calling for the aid of many persons, that after discovery of enough to show clearly the essence of the scheme and the identity of a number participating, the identity and the fact of participation of others remain" }, { "docid": "23144674", "title": "", "text": "type of case the proofs are held to be sufficient if the evidence warrants an inference that the particular defendant directly agreed to a scheme in which it was known that the likelihood of use of interstate telephone calls was great. As aptly said in Twitchell at page 429: “The degree of knowledge required of the interstate aspect thus increases as the defendant’s connection with the core agreement becomes more tenuous.” Here the proof of Fried’s “connection with the core agreement” is overwhelming. There is nothing tenuous about it. PART IV THE CONDUCT OF THE TRIAL A The Grand Jury Testimony of Fried and Motto Was Properly Received and It Was Not an Abuse of Discretion to Deny the Motions for a Severance. I Some time ago, and consistently over the years, the Supreme Court has instructed trial judges in no uncertain terms to give clear and explicit limiting instructions during the trial of joint criminal conspiracy cases, so that the jurors would understand those instances where certain evidence is received only as against certain specific defendants and with respect to certain specific issues. Blumenthal v. United States, 332 U.S. 539, 559-560, 68 S.Ct. 248, 92 L.Ed. 154 (1947). We find not the slightest indication in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) that the use of such limiting instructions is to be abolished or curtailed, except in the context of the overruling of the Court’s former holding in Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), that is to say, in cases where a co-defendant’s confession implicating another defendant in the commission of the crime, is received with limiting instructions even though the co-defendant making the confession does not testify and thus afford the confrontation required by the Constitution. In this case Judge Weinfeld, an able and experienced trial judge, followed the teaching of Blumenthal to the letter, and, in our judgment, made his limiting instructions “impregnable.” A prime example is his treatment of the testimony of Fried and Motto before the Grand Jury. These" }, { "docid": "1663643", "title": "", "text": "of a conspiracy, can justify charging one recent conspirator with the admission of another. Such a statement is unquestionably inadmissible hearsay as against anyone but its author. Nevertheless, when the author of such a confession and another whom it implicates are tried together the courts have rather generally permitted the jury to hear and consider the statement as evidence against its author with an admonition that it is to be disregarded as evidence against the co-defendant. E. g., United States v. Gottfried, 2 Cir., 1948, 165 F.2d 360; Rich v. United States, 1 Cir., 1933, 62 F.2d 638. Until recently the Supreme Court adhered to this position despite its recognition that in many cases the accompanying admonition is likely to be no more than ritualistic counsel of psychologically impossible behavior. Blumenthal v. United States, 1947, 332 U.S. 539, 559, 68 S.Ct. 248, 92 L.Ed. 154. But in Delli Paoli v. United States, 1957, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278, while a bare majority of the Court held that such restrictive admission of a hearsay statement of a codefendant was not, without more, reversible error, the opinion of the Court nevertheless emphasized the particular circumstances of the case in such a way as clearly to imply that other circumstances would have produced a different result. Delli Paoli involved a joint trial in which petitioner and four other co-defendants were convicted of conspiring to deal unlawfully in alcohol. The post-conspiracy confession of one of the defendants contained assertions implicating the petitioner. It was admitted with explicit instructions that it be considered only in determining the guilt or innocence of its author. It is noteworthy that the only objection to this statement as evidence against the codefendant was its hearsay character. The same assertions from the lips of a witness on the stand would clearly have been admissible against all defendants. Moreover, as the Court pointed out in Delli Paoli, there was no practical way of deleting the references to the codefendant and leaving the substance of the confession intact. And finally, the Court emphasized that so much of the" }, { "docid": "23144675", "title": "", "text": "specific defendants and with respect to certain specific issues. Blumenthal v. United States, 332 U.S. 539, 559-560, 68 S.Ct. 248, 92 L.Ed. 154 (1947). We find not the slightest indication in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) that the use of such limiting instructions is to be abolished or curtailed, except in the context of the overruling of the Court’s former holding in Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), that is to say, in cases where a co-defendant’s confession implicating another defendant in the commission of the crime, is received with limiting instructions even though the co-defendant making the confession does not testify and thus afford the confrontation required by the Constitution. In this case Judge Weinfeld, an able and experienced trial judge, followed the teaching of Blumenthal to the letter, and, in our judgment, made his limiting instructions “impregnable.” A prime example is his treatment of the testimony of Fried and Motto before the Grand Jury. These two appellants gave no testimony that could even remotely be considered as involving any of the appellants in any wrongdoing whatever, much less as indicating that they or any of them participated in the conspiracy as charged. What Motto and Fried did before the Grand Jury was to tell a variety of brazen lies that served their purpose to conceal their participation in the course of events. It is not contended that any of the other appellants had anything to do with this perjury or that they were in any manner involved in it. Accordingly, Judge Weinfeld, both at the time this Grand Jury testimony of Fried and Motto was received, and in his instructions to the jury at the close of the case, told the jurors, in the most specific and emphatic manner, that this testimony was received only as against Fried and Motto, respectively, on the issue of the intent of each of these two, separately, and that the jurors must under no circumstances consider any part of this testimony in their determination" }, { "docid": "11858665", "title": "", "text": "or otherwise, are so great that no one really can say prejudice to substantial right has not taken place. * * * [Petitioners’ substantial rights were prejudiced by their being] tried en masse for the conglomeration of distinct and separate offenses committed by others * * Kotteakos v. United States, supra, 328 U.S. at pages 774, 775, 66 S.Ct. at pages 1252, 1253, 90 L.Ed. 1557. The indictment here likewise alleges but a single, all-inclusive scheme, each count of the indictment, however, specifying a different and distinct overt act in furtherance of such scheme. The trial court’s instructions were based upon the assumption that upon the evidence there could be a single scheme. Appellants contend that the evidence shows several distinct schemes [perhaps as many as there are defendants, other than Rhodes ], if anything, rather than one all-inclusive scheme. Using the Supreme Court’s metaphor, they are saying that the various defendants were separate spokes meeting in a common center (Rhodes) hut without the rim of the wheel to enclose the spokes. The government does not concede the variance. Thus, we have before us an issue not presented nor determined in the Kotteakos case but which this court since that decision has had occasion to consider. See Canella v. United States, 9 Cir., 1946, 157 F.2d 470; Blumenthal v. United States, 9 Cir., 1946, 158 F.2d 883, affirmed, 1947, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154. In Blumenthal v. United States, 1947, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154, the Supreme Court was placed in the same position and was obliged to determine that which was admitted in the Kotteakos case. The indictment of Blumenthal and others charged a single conspiracy in a single count. Ten overt acts were specified. [We consider it not a material point of difference that the indictment in the instant case charged the same scheme in eighteen counts each count specifying a different overt act]. The government there alleged and sought to [and did] establish that all of the defendants-petitioners and other unidentified persons, conspired together to dispose of a certain" }, { "docid": "15046280", "title": "", "text": "the sound discretion of the trial court, and a ruling denying severance will not be reversed unless there is shown an abuse of that discretion. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954); United States v. Peterson, 173 U.S.App.D.C. 49, 54, 522 F.2d 661, 666 (1975); United States v. Leonard, 161 U.S.App.D.C. 36, 46, 494 F.2d 955, 965 (1974); United States v. Gambrill, 146 U.S.App.D.C. 72, 83, 449 F.2d 1148, 1159 (1971); United States v. Wilson, 140 U.S.App.D.C. 220, 226-228, 434 F.2d 494, 500-502 (1970). In applying this well established rule, however, courts have always kept in mind the problems inherent in trial of conspiracy cases involving numerous defendants. The Supreme Court has long recognized that in such cases “the liberal rules of evidence and the wide latitude accorded the prosecution may, and sometimes do, operate unfairly against an individual defendant * * Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 468, 86 L.Ed. 680 (1942). The “dangers of transference of guilt” are such that a court should use “every safeguard to individualize each defendant in his relation to the mass.” Kotteakos v. United States, 328 U.S. 750, 774, 773, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946). See Blumenthal v. United States, 332 U.S. 539, 559-560, 68 S.Ct. 248, 92 L.Ed. 154 (1948). Particularly where there is a great disparity in the weight of the evidence, strongly establishing the guilt of some defendants, the danger persists that that guilt will improperly “rub off” on the others. United States v. Kelly, 349 F.2d 720, 756-759 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966). In Kelly the Court of Appeals for the Second Circuit emphasized that severance is among the most important safeguards available to minimize the risk of prejudice, and it ordered a new separate trial for the one alleged co-conspirator who was disadvantaged by the disproportion in the evidence. Id. at 756. See United States v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971). This court has often expressed its acceptance of" }, { "docid": "9414824", "title": "", "text": "to consider any defendant’s statements made in the absence of other defendants as evidence against the others. Delli Paoli v. United States, 352 U.S. 232, 239, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957); Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947); Hall v. United States, supra. Several defendants alleged to have participated in the same offenses may be charged in the same indictment. F.R.Crim.P. 8(b). “The terms of Rule 8(b) having been met and no prejudice under Rule 14 having been shown, there was no misjoinder.” Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960). Appellant’s other claims of error are without merit. See Coleman v. United States, 114 U.S.App.D.C. -, 313 F.2d 576. Affirmed. . The limiting charge distinguishes this case from Nelson v. United States, 93 U.S.App.D.C. 14, 23, 208 F.2d 505, 514 (1953), cert. denied, 346 U.S. 827, 74 S.Ct. 48, 98 L.Ed. 352 (1953), where “the court did not, and as a practical matter could not, limit the jury’s consideration of the unlawfully seized” lottery record; from Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829 (1943), relied upon in Nelson, where the judge’s charge allowed the jury “to assume that in ascertaining the guilt or innocence of each defendant they could consider the whole proof made at the trial”, 318 U.S. at 356-357, 63 S.Ct. at 602; and from McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948), also relied on in Nelson, where “the unlawfully seized materials were the basis of evidence used against the codefendant.” 335 U.S. at 456, 69 S.Ct. at 193. Cf. Malinski v. New York, 324 U.S. 401, 411, 65 S.Ct. 781, 89 L.Ed. 1029 (1945)." }, { "docid": "21223211", "title": "", "text": "with the Sappersteins in charting every detail of the proscribed transportation. When the challenged declarations came to light at the trial, Austrew had already been identified as the one who wired the money to the defendants for the tickets, who spoke to them on the telephone just before the flights, and who appeared in accordance with their arrangements to meet the girls at the airport. Since Austrew’s utterances were made while driving from the airport with the new arrivals to the Derby Club, obviously the contemplated final step in furtherance of the common objective, what he then said may be considered part of the res gestae and a circumstantial link evidencing appellants’ state of mind in arranging the transportation. Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); United States v. Flynn, 216 F.2d 354, 360-361 (2d Cir., 1954), cert. denied 348 U.S. 909, 75 S.Ct. 295, 99 L.Ed. 713 (1955); United States v. Copeland, 295 F.2d 635, 637 (4th Cir., 1961), cert. denied 368 U.S. 955, 82 S.Ct. 398, 7 L.Ed.2d 388 (1962); Washington v. United States, 275 F.2d 687, 690 (5th Cir., 1960); Garber v. United States, 145 F.2d 966, 969 (6th Cir., 1944); Braatelien v. United States, 147 F.2d 888, 893 (8th Cir., 1945). See Wigmore, Evidence, § 1789 (3d ed. 1940); McCormick, Evidence, § 228, pp. 463 et seq. (1954). As such, they were admissible under the time-honored exception to the hearsay rule “that a declaration made by one conspirator, in furtherance of a conspiracy and prior to its termination, may be used against the other conspirators.” Delli Paoli v. United States, 352 U.S. 232, 236-239, 77 S.Ct. 294, 297-298, 1 L.Ed.2d 278 (1957); Lutwak v. United States, 344 U.S. 604, 617-619, 73 S.Ct. 481, 97 L.Ed. 593 (1953); Blumenthal v. United States, 332 U.S. 539, 559-560, 68 S.Ct. 248, 92 L.Ed. 154 (1948); Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 249, 38 S.Ct. 65, 62 L.Ed. 260 (1917). Since one member of a conspiracy is in law an agent of the others, Lutwak v. United States," }, { "docid": "23012240", "title": "", "text": "1943), where the Court contrasted the error in refusing to sever after the evidence was in to the propriety of denying a pretrial motion. . See United States v. Haupt, 136 F.2d 661, 673-674 (7th Cir. 1943); Krause v. United States, 147 F. 442 (8th Cir. 1906). . United States v. Delli Paoli, 352 U.S. 232, 242, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). Cf. United States v. Keegan, 141 F.2d 248, 258 (2d Cir. 1944), rev’d on other grounds, 325 U.S. 478, 65 S.Ct. 1203, 89 L.Ed. 1745 (1945) (aside from no mention of them in declarant’s statement, co-conspirators’ guilt was established by other and abundant proof). . United States v. Delli Paoli, 352 U.S. 232, 247, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957) (dissenting opinion). . Ibid. See Schaffer v. United States, 221 F.2d 17, 19 (5th Cir. 1955) (non-declarant present with declarant on every occasion relevant to crime); Hale v. United States, 25 F.2d 430, 438 (8th Cir. 1928) (only other evidence against nondeclarant was testimony of confessed criminal with a “bad general character”). Cf. Anderson v. United States, 270 F.2d 124, 126 (6th Cir. 1959) (no evidence against nondeclarant except co-defendants’ admissions; Court reversed for insufficiency of evidence while upholding denial of severance). . “The danger rested * * * in the risk that the jury, in disregard of the court’s direction, would transfer, consciously or unconsciously, the effect of the * * * admissions * * * to the other * * * defendants.” Blu-menthal v. United States, 332 U.S. 539, 559, 68 S.Ct. 248, 257, 92 L.Ed. 154 (1947). . Cf. United States v. Jacangelo, 281 F. 2d 574 (3d Cir. 1960) ; People v. Lombard, 4 App.Div.2d 666, 168 N.Y.S.2d 419 (1957). . See United States v. Delli Paoli, 229 F.2d 319, 321 (2d Cir. 1956), aff’d 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). . In any event, there must be some independent evidence tending to establish the corpus delicti. Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 99 L.Ed. 101 (1954). . Compare for the extreme" }, { "docid": "15046281", "title": "", "text": "a court should use “every safeguard to individualize each defendant in his relation to the mass.” Kotteakos v. United States, 328 U.S. 750, 774, 773, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946). See Blumenthal v. United States, 332 U.S. 539, 559-560, 68 S.Ct. 248, 92 L.Ed. 154 (1948). Particularly where there is a great disparity in the weight of the evidence, strongly establishing the guilt of some defendants, the danger persists that that guilt will improperly “rub off” on the others. United States v. Kelly, 349 F.2d 720, 756-759 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966). In Kelly the Court of Appeals for the Second Circuit emphasized that severance is among the most important safeguards available to minimize the risk of prejudice, and it ordered a new separate trial for the one alleged co-conspirator who was disadvantaged by the disproportion in the evidence. Id. at 756. See United States v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971). This court has often expressed its acceptance of the rule announced in Kelly, requiring severance when the evidence against one or more defendants is “far more damaging” than the evidence against the moving party. United States v. Bolden, 169 U.S.App.D.C. 60, 69, 514 F.2d 1301, 1310 (1975); United States v. Leonard, supra, 160 U.S.App.D.C. at 47, 494 F.2d at 966; United States v. Gambrill, supra, 142 U.S.App.D.C. at 83, 86, 449 F.2d at 1159, 1162; McHale v. United States, 130 U.S.App.D.C. 163, 164, 398 F.2d 757, 758, cert. denied, 393 U.S. 985, 89 S.Ct. 462, 21 L.Ed.2d 447 (1968). Mardian made out a fairly strong case under the Kelly doctrine when he moved for severance before trial. JA 318-325. He pointed out that, unlike the other six original indictees, he had been named only in the conspiracy count. All the others were named at least in Count 2, charging the substantive offense of obstruction of justice; four were accused as well of one or more individual counts of perjury. Count 1, charging them all with conspiracy, alleged 45 overt acts. Of these only" }, { "docid": "22876765", "title": "", "text": "called “a mental gymnastic which is beyond, not only their powers, but anybody’s else.” Nash v. United States, 54 F.2d 1006, 1007 (2 Cir. 1932). It is impossible realistically to suppose that when the twelve good men and women had Jones’ confession in the privacy of the jury room, not one yielded to the nigh irresistible temptation to fill in the blanks with the keys Kuhle had provided and ask himself the intelligent question to what extent Jones’ statement supported Kuhle’s testimony, or that if anyone did yield, his colleagues effectively persuaded him to dismiss the answers from his mind. It well may be that a juror’s engaging in this process “furthers, rather than impedes, the search for truth,” as Judge Hand suggested, 54 F.2d at 1007. So, as some think, would the introduction of many statements banned by the hearsay rule. But the Sixth Amendment guarantees every accused the right “to be confronted with the witnesses against him,” and it “cannot seriously be doubted at this late date that the right of cross-examination is included” in the constitutional guarantee. Pointer v. State of Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). The Government argues that however this may stand as a matter of good sense, Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), and decisions of this court cause it to stand otherwise as a matter of law; these decisions, it argues in substance, have created a conclusive presumption that the jury will follow a proper instruction to consider a confession only against the confessor and to ignore its significance as to other defendants. We do not read Delli Paoli as going so far. Indeed, as was immediately noticed, the novelty of the decision lay not in the result but in the agreement of the five Justices in the majority and the four dissenters in refusing to consider an instruction as inevitably sufficient, cf. Blumenthal v. United States, 332 U.S. 539, 559, 68 S.Ct. 248, 92 L.Ed. 154 (1947), thereby implicitly recognizing that there may be situations" }, { "docid": "21223212", "title": "", "text": "398, 7 L.Ed.2d 388 (1962); Washington v. United States, 275 F.2d 687, 690 (5th Cir., 1960); Garber v. United States, 145 F.2d 966, 969 (6th Cir., 1944); Braatelien v. United States, 147 F.2d 888, 893 (8th Cir., 1945). See Wigmore, Evidence, § 1789 (3d ed. 1940); McCormick, Evidence, § 228, pp. 463 et seq. (1954). As such, they were admissible under the time-honored exception to the hearsay rule “that a declaration made by one conspirator, in furtherance of a conspiracy and prior to its termination, may be used against the other conspirators.” Delli Paoli v. United States, 352 U.S. 232, 236-239, 77 S.Ct. 294, 297-298, 1 L.Ed.2d 278 (1957); Lutwak v. United States, 344 U.S. 604, 617-619, 73 S.Ct. 481, 97 L.Ed. 593 (1953); Blumenthal v. United States, 332 U.S. 539, 559-560, 68 S.Ct. 248, 92 L.Ed. 154 (1948); Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 249, 38 S.Ct. 65, 62 L.Ed. 260 (1917). Since one member of a conspiracy is in law an agent of the others, Lutwak v. United States, supra, his declarations as related by a third-party witness are binding even upon those co-defendants who were not present during the conversations. Lutwak v. .United States, supra; Clune v. United States, 159 U.S. 590, 16 S.Ct. 125, 40 L.Ed. 269 (1895). It is true that the co-conspirators’ exception cannot be invoked without a showing that the declarant was presently engaged in promoting the joint criminal enterprise. But where, as here, such a showing has been made, the principle is not rendered inapplicable merely because the accused has not been formally indicted for conspiracy. Sprinkle v. United States, 141 F. 811, 815-818 (4th Cir., 1905); Hilliard v. United States, 121 F.2d 992, 999 (4th Cir.), cert. denied 314 U.S. 627, 62 S.Ct. 111, 86 L.Ed. 503 (1941); Carpenter v. United States, 264 F.2d 565, 572 (4th Cir.), cert. denied 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548 (1959). This much was made clear by Judge Learned Hand in United States v. Olweiss, 138 F.2d 798, 799 (2d Cir., 1943), cert. denied 321 U.S. 744, 64" }, { "docid": "1663642", "title": "", "text": "only against the codefendant who had signed it. A motion for mistrial, on the ground that the jury had been told in effect that Jacangelo had been convicted of and charged with other crimes, was denied. In these circumstances we must determine whether there was error in permitting the entire statement to go to the jury. It is familiar learning that any statement made by a conspirator in furtherance of the conspiracy and during its pendency is admissible against each co-conspirator, provided a foundation has been laid by independent proof of the conspiracy. Clune v. United States, 1895, 159 U.S. 590, 593, 16 S.Ct. 125, 40 L.Ed. 269; Logan v. United States, 1892, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429. See Krulewitch v. United States, 1949, 336 U. S. 440, 443, 69 S.Ct. 716, 93 L.Ed. 790. However, any incriminating statement made by a conspirator after termination of the conspiracy is his admission alone. At that stage, no theory of agency, such as is invoked to characterize verbal acts during and in furtherance of a conspiracy, can justify charging one recent conspirator with the admission of another. Such a statement is unquestionably inadmissible hearsay as against anyone but its author. Nevertheless, when the author of such a confession and another whom it implicates are tried together the courts have rather generally permitted the jury to hear and consider the statement as evidence against its author with an admonition that it is to be disregarded as evidence against the co-defendant. E. g., United States v. Gottfried, 2 Cir., 1948, 165 F.2d 360; Rich v. United States, 1 Cir., 1933, 62 F.2d 638. Until recently the Supreme Court adhered to this position despite its recognition that in many cases the accompanying admonition is likely to be no more than ritualistic counsel of psychologically impossible behavior. Blumenthal v. United States, 1947, 332 U.S. 539, 559, 68 S.Ct. 248, 92 L.Ed. 154. But in Delli Paoli v. United States, 1957, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278, while a bare majority of the Court held that such restrictive admission of" }, { "docid": "18363670", "title": "", "text": "specific request for severance was made at the end of the judge’s charge by Smith’s counsel and no objection was made or exception taken by him to the charge on this point or, as we have stated, to the charge limiting the effect of Lipowitz’s inculpatory statements. See Rule 30, Fed.R.Crim.Proc., 18 U.S.C. United States v. Bruton, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), had not been decided at the time of Smith’s trial. Smith rests his case on Bruton. He contends that he was denied his right of confrontation and was prejudiced by the refusal of the court below to grant him a separate trial. , Bru ton expressly overruled Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), in which it was held that a trial court’s instruction to disregard the confession of one defendant implicating by name another defendant on trial in the same proceeding was sufficient protection to the other defendant. In Bruton the Supreme Court set aside Bruton’s conviction where his codefendant Evans had confessed orally that he and Bruton had committed the robbery despite a specific charge by the trial judge that Evans’ oral confession was inadmissible hearsay against Bruton. Mr. Justice Brennan, stated, 391 U.S. at 126, 88 S.Ct. at 1622: “We hold 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. We therefore overrule Delli Paoli and reverse. The basic premise of Delli Pevoli was that it is ‘reasonably possible for the jury to follow’ sufficiently clear instructions to disregard the confessor’s extrajudicial statement that his codefendant participated with him in committing the crime. 352 U.S., at 239 [77 S.Ct. 294, at 299].” The issue presented is a narrow one and Smith insists that Bruton requires a decision in his favor. Had Smith been named in Lipowitz’s statements as testified to by Agent Crowley, the principles" }, { "docid": "23456655", "title": "", "text": "required here, an immense amount of our judicial time has been spent sifting through testimony in an effort fairly to determine if there was in fact sufficient evidence to tie each of the conspiracy defendants to a common unlawful agreement. Furthermore, considering the great potential for prejudice to the various individual defendants arising from one mass trial, I again remind all, including myself, that a conviction must rest upon individual guilt beyond a reasonable doubt, not mass guilt. Kotteakos v. United States, supra, 328 U.S. 750, at 774, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). The prejudice to the individual defendant forced to defend himself at a joint trial with numerous other alleged co-conspirators is compounded in instances where, as here, the proof as readily indicates the existence of a number of isolated transactions or several small conspiracies as it does the single conspiracy charged by the prosecution. Just as the danger of inferring guilt from one codefendant to another increases in proportion to the number of persons compelled to stand trial together, (Blumenthal v. United States, 332 U.S. 539, 559, 68 S.Ct. 248, 92 L.Ed. 154 (1947)), the danger of guilt by association at a multiple defendant trial intensifies as the number of possible conspiracies grows. Undoubtedly there is a tendency for the jury to believe that a defendant must have been involved in the alleged all-encompassing conspiracy, once it finds that individual to have committed one of the minor acts which the prosecution contends is but an extension of the greater conspiracy. This, of course, is the very heart of the single charge-multiple conspiracies issue: whether the minor act itself was in fact an act in furtherance of, and with knowledge of, the single conspiracy. I have already mentioned my doubts about the ability of even the most conscientious jury to keep separate the evidence that may be properly considered against each defendant. In a case such as this, I conclude that the danger of prejudice arising from a joint trial far outweighs any inconvenience that would be imposed upon the government and the courts were the prosecution" }, { "docid": "9956207", "title": "", "text": "U.S.C.A., provides: “If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.” Whenever it appears to the court that there is a likelihood of injustice to any defendant or to the Government, the-court may exercise its discretion to order an election or grant a severance, as. permitted by the rule. We recently discussed this general subject in Ingram v. United States, 4 Cir., 272 F.2d 567. The-application for such an order should not. be granted automatically or refused automatically, but the trial judge should be-guided in his decision by the circumstances. The danger of prejudice may sometimes be adequately avoided if the-objectionable portions of the documentary evidence are obliterated before the-documents are received in evidence, but no rule can be laid down encompassing* every possible situation. It is in the judicial discretion. Here, however, Pryor, represented by counsel of his choice, did not move for a severance and did not suggest obliteration of the objectionable-matter from the Bryant confession. Nevertheless, in the interest of justice, we have considered the matter and find! no error because the unedited Bryant confession added little, if anything, to-the force of the sequence of events and the conversation with Pryor as related by the agent on the witness stand. Affirmed. . 26 U.S.C.A. § 4742. . Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790. . Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278; Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593; Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154; Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300. . See United States v. Delli Paoli, 2 Cir., 229 F.2d 319. . See, e.g., Judge Chesnut’s opinion in United States v. Decker, D.C., 51 F.Supp. 20." }, { "docid": "23012241", "title": "", "text": "general character”). Cf. Anderson v. United States, 270 F.2d 124, 126 (6th Cir. 1959) (no evidence against nondeclarant except co-defendants’ admissions; Court reversed for insufficiency of evidence while upholding denial of severance). . “The danger rested * * * in the risk that the jury, in disregard of the court’s direction, would transfer, consciously or unconsciously, the effect of the * * * admissions * * * to the other * * * defendants.” Blu-menthal v. United States, 332 U.S. 539, 559, 68 S.Ct. 248, 257, 92 L.Ed. 154 (1947). . Cf. United States v. Jacangelo, 281 F. 2d 574 (3d Cir. 1960) ; People v. Lombard, 4 App.Div.2d 666, 168 N.Y.S.2d 419 (1957). . See United States v. Delli Paoli, 229 F.2d 319, 321 (2d Cir. 1956), aff’d 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). . In any event, there must be some independent evidence tending to establish the corpus delicti. Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 99 L.Ed. 101 (1954). . Compare for the extreme situation, United States v. Gordon, 253 F.2d 177, 183 (7th Cir. 1958), where the Court held the objectionable statement, being only exculpatory, did not rise to the statute of an admission by the declarant. . 165 F.2d 360, 367 (2d Cir.), cert. denied, 333 U.S. 860, 68 S.Ct. 738, 92 L.Ed. 1139 (1948). . United States v. Haupt, 136 F.2d 661, 671-672 (7th Cir. 1943). See the dissenting opinion by Judge Frank in United States v. Delli Paoli, 229 F.2d 319, 324 (2d Cir. 1956), aff’d, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957); dissenting opinion by Mr. Justice Jackson in Lutwak v. United States, 344 U.S. 604, 623, 73 S.Ct. 481, 97 L.Ed. 593 (1953). . See United States v. Toner, 173 F.2d 140, 142, 143 (3d Cir. 1949). . Uniform Rule of Evidence 45; Model Code of Evidence rule 303 (1942); McCormick, Evidence 319 (1954); 2 Wharton, Criminal Evidence and Procedure § 673 at 612 (12th ed. 1955); 6 Wigmore, Evidence § 1864 at 491 (3d ed. 1940). . Cf. Pointer" }, { "docid": "9414823", "title": "", "text": "not a conclusive ground for ordering the parties to be tried separately.” Lucas v. United States, 70 App.D.C. 92, 93, 104 F.2d 225, 226 (1939), quoting Commonwealth v. Bingham, 158 Mass. 169, 33 N.E. 341, 342 (1893) (Holmes, J.); Hall v. United States, 83 U.S.App.D.C. 166, 168, 168 F.2d 161, 163, 4 A.L.R.2d 1193 (1948), cert. denied, 334 U.S. 853, 68 S.Ct. 1509, 92 L.Ed. 1775 (1948). That the admissions of other defendants implicated appellant Dykes as well does not compel severance. Stewart v. United States, 94 U.S.App.D.C. 293, 294 n. 3, 214 F.2d 879, 880 n. 3 (1954). “The mere fact that appellant might have had a better chance of acquittal if tried separately * * * does not establish his right to a severance.” Robinson v. United States, 93 U.S.App.D.C. 347, 349, 210 F.2d 29, 31 (1954). It was within the trial court’s discretion to “grant a severance of defendants or provide whatever other relief justice requires”. F.R. Crim.P. 14. This restates the common law rule. The court duly charged the jury not to consider any defendant’s statements made in the absence of other defendants as evidence against the others. Delli Paoli v. United States, 352 U.S. 232, 239, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957); Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947); Hall v. United States, supra. Several defendants alleged to have participated in the same offenses may be charged in the same indictment. F.R.Crim.P. 8(b). “The terms of Rule 8(b) having been met and no prejudice under Rule 14 having been shown, there was no misjoinder.” Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960). Appellant’s other claims of error are without merit. See Coleman v. United States, 114 U.S.App.D.C. -, 313 F.2d 576. Affirmed. . The limiting charge distinguishes this case from Nelson v. United States, 93 U.S.App.D.C. 14, 23, 208 F.2d 505, 514 (1953), cert. denied, 346 U.S. 827, 74 S.Ct. 48, 98 L.Ed. 352 (1953), where “the court did not, and as a practical matter could not, limit the jury’s" }, { "docid": "22824413", "title": "", "text": "fair trial. United States v. Haim, S.D.N.Y., 1963, 218 F.Supp. 922. A mere showing of some prejudice has usually been insufficient, for qualitatively it must be the most compelling prejudice against which the trial court will be unable to afford protection. Tillman v. United States, 5 Cir., 1968, 406 F.2d 930, rehearing en banc denied, 1969; Williamson v. United States, 9 Cir., 1962, 310 F.2d 192; United States v. Lev, S.D.N.Y., 1958, 22 F.R.D. 490. The year following the Kotteakos decision, supra, the Supreme Court in Blumenthal v. United States, 1947, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 found that a single conspiracy existed where five co-conspirators were involved in selling whiskey at over-ceiling prices to retailers. Though the'trial court in Blumenthal had found that the evidence adduced established the existence of one overall conspiracy, certain admissions of two of the co-conspirators were excluded as evidence against three of the other defendants on trial. The jury was specifically instructed to disregard that evidence in considering the evidence against any defendant other than the two who made the admissions. Responding to the contentions on appeal that the safeguards implemented by the trial court were inadequate, the Supreme Court wrote: “The grave danger in this case, if any, arose not from the trial court’s rulings upon admissibility or from its instructions to the jury. * * * The danger rested * * * in the risk that the jury, in disregard of the court’s direction, would transfer, consciously or unconsciously, the effect of the excluded admissions from the case as made against Goldsmith and Weiss across the barrier of the exclusion to the other three defendants.” 332 U.S. at 559, 68 S.Ct. at 257, 92 L.Ed. at 169. The Supreme Court there went on to list three safeguards — each of which was satisfied — which must be accorded in a mass trial: (i) clear rulings on admissibility, (ii) limitations of the bearing of evidence as against particular individuals, and (iii) adequate instructions. The Court emphasized that these are “extremely important * * * safeguards [which must] be made as" } ]

[ { "docid": "5925731", "title": "", "text": "that receives Hargrove’s untimely petition, we find that the district court’s actions here were reasonable. Recently, the Second Circuit was confronted with a factually similar situation in Zarvela v. Artuz, 254 F.3d 374, 376 (2d Cir.2001). Zarvela sought permission to withdraw his timely petition, without prejudice to renew at a later date, so that he could present a new claim to the state courts. Zarvela, 254 F.3d at 377. Zarve-la pursued his state court remedies and returned to federal court fourteen days after he was denied leave to appeal. Id. The district court dismissed Zarvela’s subsequent petition as untimely. Id. The Second Circuit decided that the district court should have stayed Zarvela’s first petition, subject to appropriate conditions. When a district court elects to stay a petition, “it should explicitly condition the stay on the prisoner’s pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief internormally 30 days after state court exhaustion is completed.” Id. at 381. Because Zarvela would have satisfied these conditions had the district court imposed them, the Second Circuit directed the district court to consider the petition on its merits. Id. at 383. Our Circuit has recently embraced this approach. See Palmer v. Carlton, 276 F.3d 777 (6th Cir.2002) (calling the Second Circuit’s approach in Zarvela “eminently reasonable”). Although the district court did not issue a stay in this case, it achieved the same result reached in Zarvela and approved in Palmer. It set forth certain conditions in an attempt to ensure that this ease would move forward expeditiously. First, Har-grove must pursue his state remedies within thirty days of the district court’s order and, second,- he must return to federal court within thirty days of exhausting his state remedies. At this point, Har-grove has only one option in state court-he must file a delayed appeal with the Ohio Supreme Court. There is little room for delay in this process or within the confines set forth by the district court. Accordingly, we find that prospectively tolling § 2244(d)(1)’s one year" } ]

[ { "docid": "23427051", "title": "", "text": "petitioner’s federal petition might obtain relief. See id. at 182-83, 121 S.Ct. 2120 (Stevens, J., concurring). First, Justice Stevens wrote that district courts could simply hold proceedings in abeyance while the petitioner returned to state court. When a petition contains an unexhausted claim, Justice Stevens wrote, “there is no reason why a district court should not retain jurisdiction over a meritorious claim and stay further proceedings pending the complete exhaustion of state remedies.” Id. Second, Justice Stevens indicated that although statutory tolling was not available, equitable tolling remained an option. “[A] federal court might very well conclude that tolling is appropriate based on the reasonable belief that Congress could not have intended to bar federal habeas review for petitioners who invoke the court’s jurisdiction within the 1-year interval prescribed by AED-PA.” Id. at 183, 121 S.Ct. 2120. This court has endorsed Justice Stevens’s concurrence. In Palmer v. Carlton, 276 F.3d 777 (6th Cir.2002), we ruled that a petitioner whose original petition was filed within the one-year statute of limitations, but whose petition, after the statute of limitations had expired, was voluntarily dismissed without prejudice to allow exhaustion of state remedies, could return to federal court following exhaustion provided that the petitioner filed for state court relief and returned to federal court within “a brief, reasonable time limit.” See id. at 781. We suggested that the petitioner should file in state court within a time period of “ ‘normally 30 days’ ” after the federal dismissal and should return to federal court within “'30 days’ ” of exhaustion. See id. at 781 (quoting and relying on Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir.), cert. denied, — U.S. -, 122 S.Ct. 506, 151 L.Ed.2d 415 (2001)); see also Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000) (suggesting that equitable tolling should be available “when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period”). The petitioner in Palmer had neither conformed to the “normal” thirty-day period for returning to federal court nor explained his delay, so this court affirmed the district court’s dismissal. See" }, { "docid": "23427052", "title": "", "text": "of limitations had expired, was voluntarily dismissed without prejudice to allow exhaustion of state remedies, could return to federal court following exhaustion provided that the petitioner filed for state court relief and returned to federal court within “a brief, reasonable time limit.” See id. at 781. We suggested that the petitioner should file in state court within a time period of “ ‘normally 30 days’ ” after the federal dismissal and should return to federal court within “'30 days’ ” of exhaustion. See id. at 781 (quoting and relying on Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir.), cert. denied, — U.S. -, 122 S.Ct. 506, 151 L.Ed.2d 415 (2001)); see also Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000) (suggesting that equitable tolling should be available “when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period”). The petitioner in Palmer had neither conformed to the “normal” thirty-day period for returning to federal court nor explained his delay, so this court affirmed the district court’s dismissal. See Palmer, 276 F.3d at 782. Under this analysis, first adopted in Palmer and subsequently applied in Hargrove v. Brigano, 300 F.3d 717, 2002 WL 1842218 (6th Cir.2002), we must determine whether the petitioner is entitled to equitable tolling of the statute of limitations following dismissal to permit exhaustion by examining the petitioner’s subsequent diligence in exhausting state remedies and returning to federal court. As in Palmer, 276 F.3d at 779, and Hargrove, 300 F.3d 717, 2002 WL 1842218, at *1, we are faced with a petitioner whose petition was dismissed without prejudice for failure to exhaust state remedies. As in Palmer and Hargrove, we are reviewing a district court’s disposition of such a case prior to our clarification that ordinarily, a district court should stay such unexhausted claims pending exhaustion rather than dismiss them without prejudice for that same purpose. Whether the district court dismissed the petition for failure to exhaust, with an explicit (as in this case and Hargrove, 300 F.3d 717, 2002 WL 1842218, at *1) or implicit (as in Palmer, 276 F.3d" }, { "docid": "22316285", "title": "", "text": "court remedies. We noted that problem in Warren, which concerned a habeas petitioner whose petition was dismissed without prejudice so that he could pursue new, unexhausted claims in the state courts. Warren, 219 F.3d at 113. After the dismissal, he failed to present his new claims to the state courts, and sought to return to the federal court to reactivate his original petition more than 20 months after its dismissal. He contended that the time between the dismissal and his request for reactivation should be tolled from the one-year limitations period. We rejected his claim, ruling that he had failed to exercise the “ ‘reasonable diligence’ ” required for equitable tolling. Id. (quoting Smith, 208 F.3d at 17). We also rejected his claim that his refiled petition related back to the initial filing date of his dismissed petition. Id. at 14. Sharing a concern expressed by the Fifth Circuit, we noted that if Warren’s contention were upheld, a habeas petitioner whose petition was dismissed for lack of exhaustion “ ‘could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to “continue” his federal remedy, without running afoul of the statute of limitations.’ ” Id. (quoting Graham, 168 F.3d at 780). However, the concern about excessive delays in seeking exhaustion and in returning to federal court after exhaustion can easily be dispelled by allowing a habeas petitioner no more than reasonable intervals of time to present his claims to the state courts and to return to federal court after exhaustion. Cf. Adams v. United States, 155 F.3d 582, 584 n. 2 (2d Cir.1998) (petitioner improperly denied opportunity to file timely collateral attack afforded new opportunity “provided that he does so promptly”). Therefore, where a district court elects to dismiss only unexhausted claims and stay proceedings as to the balance of the petition, the court should condition the stay on the petitioner’s initiation of exhaustion within a limited period, normally 30 days, and a return to the district court after exhaustion is completed, also within a limited" }, { "docid": "9965937", "title": "", "text": "and abeyance] approach is eminently reasonable. It addresses the equitable concerns raised by Justice Stevens in Duncan, preserves the interests i in comity embraced by Lundy, and prevents the potential abuse of the writ perpetrated by some petitioners. Id. They also embraced this procedure’s retroactive application to petitions that had been dismissed rather .than stayed.. Id. The petitioner in Palmer had filed his original habeas petition on the last day of the limitations period. Id. at 779. His motion for voluntary dismissal without prejudice was granted by the District Court on March 2, 1999. Id. A previously-filed state proceeding was dismissed on March 22,1999. Id. The petitioner re-filed his habeas action on May 24, 1999, and the District Court determined that this filing was untimely. Id. On appeal, this Court determined that the dismissal should be affirmed: Nevertheless, adoption of the Second Circuit’s approach in this case would not afford Palmer the relief he seeks. Although his state-court remedies were exhausted on March 22, 1999, he waited until May 24, 1999, before he returned to federal court and filed a second habe-as petition. This wait amounted to more than the “normal” 30-day period suggested by the Second Circuit as a reasonable period for a petitioner to return to federal jurisdiction, and the record offers no reason for the two-month delay. Id. at 781-82. As the petitioner waited sixty days after his state court dismissal to re-file his habeas petition, he would not have complied with the retroactive stay contemplated by the Zarvela court. Like the Zarvela court, the Palmer court did not conduct a traditional equitable tolling analysis.. Instead, it simply determined that had the petitioner’s case been stayed conditionally upon the two 30-day' filing windows, the petitioner would not have complied. 276 F.3d at 781-82. Notably, the court did not indicate that the failure to comply with this “normal” time period was dispositive. Indeed, the court suggested that an adequate explanation might have excused the delay. Id. (“[T]he record offers no reason for the two-month delay.”). But, Palmer offered no reason for his delay that would have permitted the" }, { "docid": "11268666", "title": "", "text": "proceedings pending the complete exhaustion of state remedies.”). But see Graham v. Johnson, 168 F.3d 762, 779-80 (5th Cir.1999) (disapproving of open-ended stays of mixed petitions). Indeed, there is a growing consensus that a stay is required when dismissal could jeopardize the petitioner’s ability to obtain federal review. See, e.g., Zarvela, 254 F.3d at 380 (holding that a stay “will be the only appropriate course” where outright dismissal could jeopardize the timeliness of any subsequent petition); Freeman v. Page, 208 F.3d 572, 577 (7th Cir.2000) (“[Dismissal is not appropriate when that step could jeopardize the timeliness of a collateral attack.”); see also Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir.2002) (noting that the Second Circuit’s approach in Zarvela “is eminently reasonable”). Although none of our cases has turned on the question of stay versus dismissal, we have indicated that district courts presented with mixed petitions should take seriously any request for a stay. In Neverson v. Bissonnette, 261 F.3d 120, 126 n. 3 (1st Cir.2001), we noted that “the petitioner could have improved his position by requesting that the district court stay, rather than dismiss, Petition No. 1. Post-AEDPA, this will be the preferable course in many cases involving ‘mixed’ petitions — and it may be the only appropriate course in cases in which an outright dismissal threatens to imperil the timeliness of a collateral attack.” We reiterated that view in Delaney v. Matesanz, 264 F.3d 7, 13 n. 5 (1st Cir.2001), where we “especially commend[ed]” the use of stays “in instances in which the original habeas petition, though unexhausted, is timely filed, but there is a realistic danger that a second petition, filed after exhaustion has occurred, will be untimely.” The state points out that neither Never-son nor Delaney compels a stay in the circumstances of this case. When the district court entered judgment in March of 1999, the statute of limitations was still being tolled by Nowaczyk’s second application for state post-conviction review, and several months would remain in the limitations period when the clock started running again. Moreover, the district court warned Nowaczyk that he would" }, { "docid": "5925730", "title": "", "text": "Duncan does not prohibit equitable tolling. Justice Stevens’ concurrence indicated that nothing in the majority opinion would prevent a court from equitably tolling the statute of limitations period for “petitioners whose timely filed habeas petitions remain pending in district court past the limitations period, only to be dismissed after the court belatedly realizes that one or more claims have not been exhausted.” Duncan, 533 U.S. at 184, 121 S.Ct. 2120 (Stevens, J., concurring). In a footnote, the Justice stated that “[t]he court below ... did not reach the question whether it ‘should exercise its equitable powers to exclude the [time] during which the first [habeas] petition was pending,’ 208 F.3d 357, 362 (C.A.2 2000), [and] is free to consider the issue on remand.” Almost all courts addressing the issue have been asked to equitably toll the statute of limitation period for untimely petitions, not to prospectively toll the period at the time the courts were dismissing timely petitions, as was the case here. Although such a decision would normally be made by the district court that receives Hargrove’s untimely petition, we find that the district court’s actions here were reasonable. Recently, the Second Circuit was confronted with a factually similar situation in Zarvela v. Artuz, 254 F.3d 374, 376 (2d Cir.2001). Zarvela sought permission to withdraw his timely petition, without prejudice to renew at a later date, so that he could present a new claim to the state courts. Zarvela, 254 F.3d at 377. Zarve-la pursued his state court remedies and returned to federal court fourteen days after he was denied leave to appeal. Id. The district court dismissed Zarvela’s subsequent petition as untimely. Id. The Second Circuit decided that the district court should have stayed Zarvela’s first petition, subject to appropriate conditions. When a district court elects to stay a petition, “it should explicitly condition the stay on the prisoner’s pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief internormally 30 days after state court exhaustion is completed.” Id. at 381. Because Zarvela" }, { "docid": "9965936", "title": "", "text": "the petitioner’s “prompt initiation of state .court exhaustion and his prompt return to federal court after completion of exhaustion,” 254 F.3d at 376-77. Thus, the appellate court directed district courts prospectively to “explicitly condition the stay on the prisoner’s pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal curt within a similarly brief .interval, normally 30 days after state court exhaustion is completed.” Without using the language of equitable tolling, the circuit court found that the petitioner was “entitled to have his petition treated as if it had been stayed, provided his entry to the state courts and his return occurred promptly.”. . Finding, that the petitioner would have complied with the timeliness conditions of the stay that should have been granted, the appellate court reversed and remanded for further proceedings. In Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir.2002), this Court endorsed the stay and abeyance procedure adopted by the Second Circuit in Zarvela, The court wrote: , The Second Circuit [stay and abeyance] approach is eminently reasonable. It addresses the equitable concerns raised by Justice Stevens in Duncan, preserves the interests i in comity embraced by Lundy, and prevents the potential abuse of the writ perpetrated by some petitioners. Id. They also embraced this procedure’s retroactive application to petitions that had been dismissed rather .than stayed.. Id. The petitioner in Palmer had filed his original habeas petition on the last day of the limitations period. Id. at 779. His motion for voluntary dismissal without prejudice was granted by the District Court on March 2, 1999. Id. A previously-filed state proceeding was dismissed on March 22,1999. Id. The petitioner re-filed his habeas action on May 24, 1999, and the District Court determined that this filing was untimely. Id. On appeal, this Court determined that the dismissal should be affirmed: Nevertheless, adoption of the Second Circuit’s approach in this case would not afford Palmer the relief he seeks. Although his state-court remedies were exhausted on March 22, 1999, he waited until May 24, 1999, before he returned to" }, { "docid": "9965939", "title": "", "text": "court to consider whether equitable tolling was appropriate. Nor could he have. Between the March 2 habeas dismissal and the May 24 habeas re-filing, the petitioner does not appear to have filed any additional proceedings in the state court. Instead, the petitioner was relying on a previously-filed state action that sought declaratory relief on purely state grounds. Id. at 780 (“[TJhis pleading did not present a federal question for review.”); Palmer v. Tennessee Dep’t of Correction, 1998 WL 870534 (Tenn.Ct.App.1998), appeal denied (Mar. 22, 1999) (raising Tennessee statutory and Tennessee constitutional claims but no federal constitutional claims). Palmer was a poor candidate for equitable tolling not simply because he waited sixty days after his state proceedings were completely concluded to re-file his federal habeas action, but because he did not bring any federal challenges whatsoever during this time period. In Hargrove v. Brigano, 300 F.3d 717 (6th Cir.2002), this Court more fully endorsed the stay-and-abeyance procedure in the context of AEDPA statute of limitations. In Hargrove, the petitioner sought habeas relief on the grounds of constitutionally insufficient evidence. Id. at 718. Since the pro se petitioner had never filed an appeal, the District Court dismissed the petition without prejudice in order for the petitioner to exhaust his state remedies. Id. Yet, rather than staying the petition, the District Court, acting prospectively, ordered the tolling of the AEDPA limitations period conditioned on the petitioner’s pursuing his state remedies within 30 days of the dismissal and returning to federal court within 30 days after exhaustion. Id. The warden challenged this prospective order of equitable tolling, arguing that the issue was not within the jurisdiction of the dismissing court. Id. at 719. Instead, the warden argued that equitable tolling should be decided by the court receiving the subsequent, untimely petition after exhaustion. Id. This Court found that the District Court’s prospective equitable tolling was reasonable. Id. at 720, 721 (“Although the district court did not issue a stay in this case, it achieved the same result reached in Zarvela and approved in Palmer.”). Again, in Hargrove, our court did not actually conduct an" }, { "docid": "9965935", "title": "", "text": "Stevens. Zarvela v. Artuz, 254 F.3d 374 (2d Cir.2001). The petitioner in Zarvela filed his habeas petition with only two days remaining in the limitations period. Id. at 377. Subsequently, he sought permission to withdraw the petition without prejudice so that he could exhaust a new claim in the state courts. Id. The District Court granted his motion. Id. Nine days later, he filed his new claim in state court; fourteen days after the state appellate decision was rendered, he re-filed his federal habeas petition. Id. The District Court dismissed his petition as untimely. Id. The Second Circuit held that the District Court confronted with Zarvela’s mixed petition should have issued a stay rather than grant the petitioner’s motion to withdraw. Id. at 380, 383 (noting that a stay “will be the only appropriate course in cases like Zarvela’s. where an outright dismissal ‘could jeopardize the timeliness of a collateral attack.’ ”) (citing Freeman v. Page, 208 F.3d 572, 577 (7th Cir.2000)) (emphasis added). Such a stay, the court ruled, should have been conditioned upon the petitioner’s “prompt initiation of state .court exhaustion and his prompt return to federal court after completion of exhaustion,” 254 F.3d at 376-77. Thus, the appellate court directed district courts prospectively to “explicitly condition the stay on the prisoner’s pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal curt within a similarly brief .interval, normally 30 days after state court exhaustion is completed.” Without using the language of equitable tolling, the circuit court found that the petitioner was “entitled to have his petition treated as if it had been stayed, provided his entry to the state courts and his return occurred promptly.”. . Finding, that the petitioner would have complied with the timeliness conditions of the stay that should have been granted, the appellate court reversed and remanded for further proceedings. In Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir.2002), this Court endorsed the stay and abeyance procedure adopted by the Second Circuit in Zarvela, The court wrote: , The Second Circuit [stay" }, { "docid": "16278207", "title": "", "text": "leave to appeal that denial). The limitations clock began running again on February 15, 2000, when a state post-conviction application was no longer pending. The limitations clock continued to run for the next 13 days, until February 28, 2000, the date on which Jimenez filed his petition for a writ of error coram nobis. The one-year statute of limitations was tolled again from February 28, 2000 through June 12, 2000, when the petitioner’s coram nobis application was pending in the Appellate Division. The clock started again on June 13, 2000 and ran for the next six days until June 19, 2000, the date the petitioner refiled his habeas corpus petition. When these nineteen days are added to the 356-day total, the one-year AEDPA statute of limitations is exceeded by ten days, and Jimenez’s petition is thus time-barred. The Court notes that in August 1999, Jimenez presented it with a choice: dismiss the petition with leave to refile, or stay the proceedings while the petitioner exhausted his state-court remedies. The Court dismissed the petition with leave to refile. Had the Court stayed the proceedings instead, Jimenez’s petition would not be time-barred, because it was filed on May 5, 1999, twenty-three days before the expiration of the limitations period. Since the Supreme Court’s decision in Duncan, the Second Circuit has stated that when a district court is presented with a petition containing exhausted and unexhausted claims, the district court should dismiss only the unexhausted claims and stay further proceedings on the remaining portion of the petition where, as here, “outright dismissal could jeopardize the timeliness of a collateral attack.” Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir.2001). To avoid the problems associated with excessive delays in seeking exhaustion, the Second Circuit suggested “conditioning] the stay on the petitioner’s initiation of exhaustion within a limited period, normally 30 days, and a return to the district court after exhaustion is completed, also within a limited period, normally 30 days.” Id. at 381. If the district court chooses to dismiss the entire petition, the Second Circuit recommends including in the dismissal order “an appropriate" }, { "docid": "9965919", "title": "", "text": "OPINION MERRITT, Circuit Judge. Sandra Griffin filed a petition for habeas relief in April of 1997. In September of 1998, the District Court dismissed her petition without prejudice as she had not exhausted her state remedies. When she returned to federal court in October of 1999, her re-filed petition was dismissed as untimely pursuant to the one-year limitations period under 28 U.S.C. § 2244(d)(1). In 2002, this Court vacated the District Court’s dismissal of Griffin’s petition and remanded for further proceedings in order to determine whether the petitioner was entitled to equitable tolling. Griffin v. Rogers, 308 F.3d 647 (2002).. In January of 2004, the District Court, adopting the Report and Recommendation of the Magistrate Judge, ruled that Griffin was not entitled to equitable tolling and dismissed the case for failure to file within the limitations period. Griffin timely appealed the District Court’s dismissal. In Palmer v. Carlton, 276 F.3d 777 (6th Cir.2002), this Court adopted a stay and abeyance procedure for habeas petitions that raise both exhausted and unexhausted claims. The exhausted portions of these petitions were to be stayed while the petitioner returned to state court. These stays were to be conditioned upon the petitioner’s pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed. Also, in Palmer, this Court determined that it would be appropriate to apply these stays retroactively to petitioners like Griffin, whose claims were dismissed rather than stayed. When this case was last before this Court, it was unclear whether Griffin had complied with the 30-day window that Palmer prescribes for pursuing state remedies after a federal dismissal. The record simply did not include that information. On remand, it was conceded that Griffin did not proceed to state court for over six months, well beyond the 30-day window suggested by Palmer. The District Court refused to equitably toll the limitations period as Griffin had not filed within the 30-day time frame. The only issue on appeal is whether the" }, { "docid": "9965956", "title": "", "text": "such was neither considered nor decided. Since those decisions, the Supreme Court has impliedly held that district courts indeed have the power to dismiss mixed petitions even if that dismissal endangers a petitioner’s ability to re-file a habeas petition within the statutory limitations period. Pliler v. Ford, 542 U.S. 225, - - -, 124 S.Ct. 2441, 2446-47, 159 L.Ed.2d 338(2004). But, while these cases indicate that dismissal for mixed petitions remains appropriate under the AEDPA limitations period, they in no way block a court from considering whether equitable tolling is appropriate. In fact, in Pliler, the court indicated that on remand the court could conduct an equitable tolling analysis. Id. at 2447 (“We remand the case for further proceedings given the Court of Appeals’ concern that respondent had been affirmatively misled ....\"); id. at 2448 (O'Connor, J., concurring) (\"Nevertheless, if the petitioner is affirmatively misled, either by the court or by the State, equitable tolling might well be appropriate.”). RONALD LEE GILMAN, Circuit Judge, dissenting. Although I have no problem with the legal principles laid out by the majority, I disagree with its application of those principles in the present case. Specifically, I believe that the majority’s decision is contrary to the holding in Palmer v. Carlton, 276 F.3d 777 (6th Cir.2002), the very case upon which the majority relies. This court in Palmer denied equitable tolling to a defendant who had waited approximately two months to refile in federal court after exhausting his state-court remedies: [A]doption of the Second Circuit’s approach [of allowing a 30-day safe harbor] in this case would not afford Palmer the relief he seeks. Although his state-court remedies were exhausted on March 22, 1999, he waited until May 24, 1999, before he returned to federal court and filed a second habeas petition. This wait amounted to more than the “normal” 30-day period suggested by the Second Circuit as a reasonable period for a petitioner to return to federal jurisdiction, and the record offers no reason for the two-month delay. Id. at 781-82. Similarly, the record in the present case offers no reason for Griffin’s delay," }, { "docid": "9965941", "title": "", "text": "“equitable tolling” analysis. It merely recognized that under the retroactive stay-and-abeyance rule of Palmer equitable tolling was proper as a matter of law for those petitioners whose petitions are dismissed without prejudice for the purpose of exhausting state claims. As this Court held previously, “Palmer introduces a new period of mandatory equitable tolling for petitioners who filed their federal habeas petitions within the statute of limitations but were forced to return to state court to exhaust certain claims.” Griffin, 308 F.3d at 654 (emphasis added). The Zarvela-Palmer-Hargrove line of cases dictates that regardless of the equities of the situation, the courts will mechanically permit a re-filing that would have been available had the case been conditionally stayed rather than dismissed. In the present case, Griffin is not entitled to the automatic equitable tolling mandated by Palmer. As her case was dismissed without prejudice on September 30, 1998 prior to both Duncan and Palmer, the District Court did not use the stay- and-abeyance- procedure. Thus, when the case was dismissed, her AEDPA limitations period had already expired. Had a stay been issued rather than a dismissal, the stay would normally be conditioned upon her filing of unexhausted claims in state court within 30 days and returning to federal court within 30 days of exhaustion. But Griffin did not file her application for delayed appeal with the Ohio courts until April 14, 1999, nearly six and one half months after her District Court dismissal. As she did not comply with the 30-day guideline, she is not entitled to mandatory equitable tolling. B. As the mandatory equitable tolling rule of Palmer is not applicable in the present case, we turn to the traditional equitable tolling analysis. This Court reviews de novo the District Court’s decision not to apply equitable tolling. King v. Bell, 378 F.3d 550, 553 (6th Cir.2004). “Federal courts have typically extended equitable relief only sparingly.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). In deciding whether equitable tolling should apply, courts in this Circuit consider the following factors: (1) the petitioner’s" }, { "docid": "9965938", "title": "", "text": "federal court and filed a second habe-as petition. This wait amounted to more than the “normal” 30-day period suggested by the Second Circuit as a reasonable period for a petitioner to return to federal jurisdiction, and the record offers no reason for the two-month delay. Id. at 781-82. As the petitioner waited sixty days after his state court dismissal to re-file his habeas petition, he would not have complied with the retroactive stay contemplated by the Zarvela court. Like the Zarvela court, the Palmer court did not conduct a traditional equitable tolling analysis.. Instead, it simply determined that had the petitioner’s case been stayed conditionally upon the two 30-day' filing windows, the petitioner would not have complied. 276 F.3d at 781-82. Notably, the court did not indicate that the failure to comply with this “normal” time period was dispositive. Indeed, the court suggested that an adequate explanation might have excused the delay. Id. (“[T]he record offers no reason for the two-month delay.”). But, Palmer offered no reason for his delay that would have permitted the court to consider whether equitable tolling was appropriate. Nor could he have. Between the March 2 habeas dismissal and the May 24 habeas re-filing, the petitioner does not appear to have filed any additional proceedings in the state court. Instead, the petitioner was relying on a previously-filed state action that sought declaratory relief on purely state grounds. Id. at 780 (“[TJhis pleading did not present a federal question for review.”); Palmer v. Tennessee Dep’t of Correction, 1998 WL 870534 (Tenn.Ct.App.1998), appeal denied (Mar. 22, 1999) (raising Tennessee statutory and Tennessee constitutional claims but no federal constitutional claims). Palmer was a poor candidate for equitable tolling not simply because he waited sixty days after his state proceedings were completely concluded to re-file his federal habeas action, but because he did not bring any federal challenges whatsoever during this time period. In Hargrove v. Brigano, 300 F.3d 717 (6th Cir.2002), this Court more fully endorsed the stay-and-abeyance procedure in the context of AEDPA statute of limitations. In Hargrove, the petitioner sought habeas relief on the grounds of" }, { "docid": "23427053", "title": "", "text": "Palmer, 276 F.3d at 782. Under this analysis, first adopted in Palmer and subsequently applied in Hargrove v. Brigano, 300 F.3d 717, 2002 WL 1842218 (6th Cir.2002), we must determine whether the petitioner is entitled to equitable tolling of the statute of limitations following dismissal to permit exhaustion by examining the petitioner’s subsequent diligence in exhausting state remedies and returning to federal court. As in Palmer, 276 F.3d at 779, and Hargrove, 300 F.3d 717, 2002 WL 1842218, at *1, we are faced with a petitioner whose petition was dismissed without prejudice for failure to exhaust state remedies. As in Palmer and Hargrove, we are reviewing a district court’s disposition of such a case prior to our clarification that ordinarily, a district court should stay such unexhausted claims pending exhaustion rather than dismiss them without prejudice for that same purpose. Whether the district court dismissed the petition for failure to exhaust, with an explicit (as in this case and Hargrove, 300 F.3d 717, 2002 WL 1842218, at *1) or implicit (as in Palmer, 276 F.3d at 781) instruction to exhaust the claims in state court before returning, or stayed the proceedings pending exhaustion, the consequences for Griffin should be the same. Accordingly, we turn to Griffin’s timeliness in returning to state court and then back to federal court to determine whether she met the requirements of Palmer. 2. September 30, 1998 — Filing of State Application to Reopen The second relevant period is the period from September 30, 1998, when Judge Holschuh dismissed the first petition, to the date on which Griffin filed in the Ohio Court of Appeals her Application to Reopen pursuant to Ohio Rule of Appellate Procedure 26(B). The record before us does not indicate when Griffin filed her Application to Reopen, so the question of which party bears the relevant burden is important. If the burden lies on Griffin, in the absence of any evidence we must presume that she did not file her application within the thirty days required under Palmer. If the burden lies on the State, we must presume that she filed her" }, { "docid": "3350512", "title": "", "text": "because he exceeded his grace period by nine days, excluding other “tolla-ble” days. Id. at 377-78. To achieve the objective of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), as reenforced by AEDPA, see 28 U.S.C. § 2254(b)(1)(A), which is to assure that a district court will not grant relief on unexhausted claims, the Second Circuit established the following framework for circumstances in which a dismissal without prejudice “ ‘could jeopardize the timeliness of a collateral attack.’ ” Zarvela, 254 F.3d at 380 (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir.2000)). A district court should dismiss only the unexhausted claims in the habeas petition and stay further proceedings on the remaining portion until the petitioner has exhausted his/her remedies in state court. Id. To allay the concern that a petitioner might take an undue amount of time to pursue state court remedies, the court imposed a brief, reasonable time limit upon the petitioner to present claims to state courts and return to federal court exhaustion, “normally 30 days” after a stay is entered for the former, and “30 days” after state court exhaustion is completed for the latter. Id. at 381. “If either condition of the stay is not met, the stay may later be vacated nunc pro tunc as of the date the stay was entered, and the petition may be dismissed.” Id. In addition, the court ruled that the defendant’s first habe-as petition should have been stayed since complete dismissal jeopardized the timeliness of his collateral attack. Id. at 382. The Second Circuit approach is eminently reasonable. It addresses the equitable concerns raised by Justice Stevens in Duncan, preserves the interests in comity embraced by Lundy, and prevents the potential abuse of the writ perpetrated by some petitioners. As countenanced by Justice Stevens, Congress could not have desired the outcome facing Palmer: the preclusion of a timely-filed petition for the writ due to the need to accord state courts the opportunity to adjudicate claims. Nevertheless, adoption of the Second Circuit’s approach in this case would not afford Palmer the relief he" }, { "docid": "9965957", "title": "", "text": "out by the majority, I disagree with its application of those principles in the present case. Specifically, I believe that the majority’s decision is contrary to the holding in Palmer v. Carlton, 276 F.3d 777 (6th Cir.2002), the very case upon which the majority relies. This court in Palmer denied equitable tolling to a defendant who had waited approximately two months to refile in federal court after exhausting his state-court remedies: [A]doption of the Second Circuit’s approach [of allowing a 30-day safe harbor] in this case would not afford Palmer the relief he seeks. Although his state-court remedies were exhausted on March 22, 1999, he waited until May 24, 1999, before he returned to federal court and filed a second habeas petition. This wait amounted to more than the “normal” 30-day period suggested by the Second Circuit as a reasonable period for a petitioner to return to federal jurisdiction, and the record offers no reason for the two-month delay. Id. at 781-82. Similarly, the record in the present case offers no reason for Griffin’s delay, and the delay at issue here was six and a half months — over three times as long as the one in Palmer. The majority’s point that Palmer was a poor candidate for equitable tolling because he raised no federal constitutional claims, Op. at 634, appears to me to be irrelevant. Diligence is the key to equitable tolling, not the nature of the defendant’s claims, and neither Palmer nor Griffin were diligent in pursuing the remedies available to them. Furthermore, I believe that the majority’s distinction between “mandatory equitable tolling” and “traditional equitable tolling,” Op. at 635, is an artificial one not justified by any prior caselaw. The 30-day Palmer rule is better viewed as a safe haven — “a brief, reasonable time limit upon the petitioner to present claims to state courts and return to federal court .... ” Palmer, 276 F.3d at 781. Under this analysis, the factors set out in Andrews v. Orr, 851 F.2d 146, 151 (6th Cir.1988), and reaffirmed in Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir.2001)," }, { "docid": "3350511", "title": "", "text": "equitably toll the limitations period during the time that a first habeas petition is pending before a dismissal without prejudice. Id. In addition, Justice Stevens noted that neither of his suggestions contravened the “narrow holding” of the majority opinion in Duncan, id. at 2130, and the majority agreed by declaring that Justice Stevens’s concern presented an issue that was not before the Court, id. at 2129. In circumstances similar to the case at bar, the Second Circuit adopted the alternative approach recommended by Justice Stevens. In Zarvela v. Artuz, 254 F.3d 374 (2d Cir.2001), the court addressed a situation in which a defendant’s first habe-as petition was dismissed without prejudice on non-exhaustion grounds. The first petition was filed with only two days of eligibility remaining on his grace period. The defendant filed for state post-conviction relief only nine days after the dismissal of his first petition. Fourteen days after the final disposition of his unexhaust-ed claims in state court, the defendant filed a second habeas petition, but the district court dismissed the petition with prejudice because he exceeded his grace period by nine days, excluding other “tolla-ble” days. Id. at 377-78. To achieve the objective of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), as reenforced by AEDPA, see 28 U.S.C. § 2254(b)(1)(A), which is to assure that a district court will not grant relief on unexhausted claims, the Second Circuit established the following framework for circumstances in which a dismissal without prejudice “ ‘could jeopardize the timeliness of a collateral attack.’ ” Zarvela, 254 F.3d at 380 (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir.2000)). A district court should dismiss only the unexhausted claims in the habeas petition and stay further proceedings on the remaining portion until the petitioner has exhausted his/her remedies in state court. Id. To allay the concern that a petitioner might take an undue amount of time to pursue state court remedies, the court imposed a brief, reasonable time limit upon the petitioner to present claims to state courts and return to federal court exhaustion, “normally 30 days”" }, { "docid": "3350513", "title": "", "text": "after a stay is entered for the former, and “30 days” after state court exhaustion is completed for the latter. Id. at 381. “If either condition of the stay is not met, the stay may later be vacated nunc pro tunc as of the date the stay was entered, and the petition may be dismissed.” Id. In addition, the court ruled that the defendant’s first habe-as petition should have been stayed since complete dismissal jeopardized the timeliness of his collateral attack. Id. at 382. The Second Circuit approach is eminently reasonable. It addresses the equitable concerns raised by Justice Stevens in Duncan, preserves the interests in comity embraced by Lundy, and prevents the potential abuse of the writ perpetrated by some petitioners. As countenanced by Justice Stevens, Congress could not have desired the outcome facing Palmer: the preclusion of a timely-filed petition for the writ due to the need to accord state courts the opportunity to adjudicate claims. Nevertheless, adoption of the Second Circuit’s approach in this case would not afford Palmer the relief he seeks. Although his state-court remedies were exhausted on March 22, 1999, he waited until May 24, 1999, before he returned to feder al court and filed a second habeas petition. This wait amounted to more than the “normal” 30-day period suggested by the Second Circuit as a reasonable period for a petitioner to return to federal jurisdiction, and the record offers no reason for the two-month delay. For the reasons set out above, we AFFIRM the judgment of the district court." }, { "docid": "9965940", "title": "", "text": "constitutionally insufficient evidence. Id. at 718. Since the pro se petitioner had never filed an appeal, the District Court dismissed the petition without prejudice in order for the petitioner to exhaust his state remedies. Id. Yet, rather than staying the petition, the District Court, acting prospectively, ordered the tolling of the AEDPA limitations period conditioned on the petitioner’s pursuing his state remedies within 30 days of the dismissal and returning to federal court within 30 days after exhaustion. Id. The warden challenged this prospective order of equitable tolling, arguing that the issue was not within the jurisdiction of the dismissing court. Id. at 719. Instead, the warden argued that equitable tolling should be decided by the court receiving the subsequent, untimely petition after exhaustion. Id. This Court found that the District Court’s prospective equitable tolling was reasonable. Id. at 720, 721 (“Although the district court did not issue a stay in this case, it achieved the same result reached in Zarvela and approved in Palmer.”). Again, in Hargrove, our court did not actually conduct an “equitable tolling” analysis. It merely recognized that under the retroactive stay-and-abeyance rule of Palmer equitable tolling was proper as a matter of law for those petitioners whose petitions are dismissed without prejudice for the purpose of exhausting state claims. As this Court held previously, “Palmer introduces a new period of mandatory equitable tolling for petitioners who filed their federal habeas petitions within the statute of limitations but were forced to return to state court to exhaust certain claims.” Griffin, 308 F.3d at 654 (emphasis added). The Zarvela-Palmer-Hargrove line of cases dictates that regardless of the equities of the situation, the courts will mechanically permit a re-filing that would have been available had the case been conditionally stayed rather than dismissed. In the present case, Griffin is not entitled to the automatic equitable tolling mandated by Palmer. As her case was dismissed without prejudice on September 30, 1998 prior to both Duncan and Palmer, the District Court did not use the stay- and-abeyance- procedure. Thus, when the case was dismissed, her AEDPA limitations period had already" } ]

[ { "docid": "23050073", "title": "", "text": "the rear seat of a car. During a long and circuitous trip to the Brazilian border his abductors dodged the Uruguayan authorities, and at one point, a gun was placed to Toscanino’s head to compel him to lie quietly while a Uruguayan military convoy passed. Toscanino was eventually brought to Brasilia, where over a period of seventeen days -he — \\yas incessantly subjected to brutal tqrture and interrogation by Brazilians acting as agents of the United States government. His captors, he claimed, denied him sleep and all forms of nourishment for days at a time. He was fed only intravenously in amounts barely sufficient to keep him alive. He was compelled to walk up and down a hallway for seven or eight hours at a time, and when he fell, was kicked and beaten. To induce him to respond to the interrogation, his fingers were pinched with metal pliers, alcohol was flushed into his eyes and nose, and other fluids were forced in his anal passage. Electrodes were attached to his earlobes, toes, and genitals, and electricity was shot throughout his body, leaving him unconscious for periods of time. Throughout this period, Toscanino asserted, the United States government and the United States Attorney for the Eastern District of New York were aware of the interrogation and received reports of its progress. Moreover, a member of the Bureau of Narcotics and Dangerous Drugs of the Department of Justice was present at times, and actually participated in some of the interrogation. Eventually, Toscanino claimed, he was drugged and flown to New York. He awakened when the aircraft reached the United States. Upon landing and while still aboard he was arrested. The district court never held a hearing with respect to Toscanino’s allegations. On the appeal from his conviction, we held that Toscanino had alleged a violation of due process which, if proved, would require the district court to divest itself of jurisdiction over him. Our opinion recognized the traditional rule, set forth in a line of cases from Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886) to" } ]

[ { "docid": "7471287", "title": "", "text": "To create a colorable argument in the face of this rule, Matta relies on an “exception” to the Ker-Frisbie doctrine carved out by the Second Circuit in United States v. Toscanino, 500 F.2d 267 (2d Cir.1974). Prior to trial for narcotics offences, Tos-canino challenged the ability of the district court to try him, contending his presence had been illegally obtained through torture and kidnapping by the United States. Tos-canino offered to prove in support of his motion that he and his pregnant wife had been lured from his home in Montevideo, Uruguay to a deserted area. There, Tos-canino claimed, he was abducted by being knocked unconscious with a gun, placed into a car, bound and blindfolded and driven across the border to Brasilia where he was incessantly tortured and interrogated for seventeen days. After this ordeal Tos-canino was drugged and placed on an American commercial flight. Once he arrived in the United States, he was taken into custody by waiting United States law enforcement officials. Faced with these allegations, the Second Circuit held that “we view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights.” 500 F.2d at 275. In so holding, that court relied on Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), where the Supreme Court applied the due process clause, to the “the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peo- pies even toward those charged with the most heinous offences.” Id. at 169, 72 S.Ct. at 208 (citations omitted). See also United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975), the Second Circuit clarified and narrowed Toscanino. In this case, the court" }, { "docid": "22990709", "title": "", "text": "justified. . Commentators have roundly criticized this principle, largely on the basis that courts should not implicitly sanction violations of international law. E. g., Dickinson, Jurisdiction Following Seizure or Arrest in Violation of International Law, 28 Am.J.Int’l L. 231 (1934); Harvard Research .Drañ Convention on Jurisdiction with Respect to Crime, art. 16, reprinted in 29 Am.J.Int’l L. 435, 623-32 (Supp.1935); Morgenstem, Jurisdiction in Seizures Effected in Violation of International Law, 29 Brit.Y.B. Int’l L. 265 (1952); Scott, Criminal Jurisdiction of a State Over a Defendant Based upon Presence Secured by Force or Fraud, 37 Minn.L. Rev. 91 (1953). Since we are bound by the precedence of Ker and Frisbie, we have no occasion to reexamine their wisdom. . In United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), the Second Circuit indicated that the precedence of Frisbie had been eroded by Supreme Court decisions establishing expanded notions of due process, such as Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (holding that due process requires exclusionary rule to be applied in state trials). 500 F.2d at 272-73. The court in Toscanino held that the due process violation found there acted to divest the district court of jurisdiction over a defendant who had been forcibly abducted from Uruguay. The defendant had been subjected to brutal torture and incessant interrogation for some 17 days. The Second Circuit has, however, limited Toscanino to its outrageous facts. In Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975), the court refused to extend the Toscanino rationale to a defendant who had not been subjected to the “cruel, inhuman and outrageous treatment allegedly suffered by Toscanino.” Id. at 65. The court continued, “Lacking from Lujan’s petition is any allegation of that complex of shocking governmental conduct sufficient to convert an abduction which is simply illegal into one which sinks to a violation of due process.” Id. at 66. This circuit has declined to follow the Tos-canino rationale, United States v. Winter, 509 F.2d at 987; United States v. Herrera," }, { "docid": "7609292", "title": "", "text": "United States v. Dozier, 672 F.2d 531 (5th Cir.1982). A trial court will be reversed only upon a showing of clear abuse of discretion. United States v. Giacalone, 588 F.2d 1158 (5th Cir.1978). We find no abuse in the trial court’s refusal to allow these two jurors to be challenged for cause. 6. Misconduct in Securing Custody of Defendant Wilson charges that the court’s jurisdiction over his person was secured by fraud and force and the court should dismiss the indictment. Alleging governmental misconduct Wilson cites as authority United States v. Toscanino, 500 F.2d 267 (2d Cir.1974). In Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886), the Supreme Court held that the power of a court to try a person for a crime would not be impaired by the fact that the person was forcibly brought within the court’s jurisdiction. The Court has consistently so ruled through a line of cases leading to Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), and beyond, Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); United v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980). Wilson cites Toscanino for the proposition that the courts have moved away from the Ker-Frisbie rule, and, taking a broader view of due process, would deny jurisdiction when the defendant’s physical presence is obtained through fraud or force. We are not persuaded. In Toscanino, the defendant was kidnapped, beaten and tortured. The Second Circuit, appalled at the violation of the standard of human decency, concluded that due process required dismissal of the indictment. Citing Ro chin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), our colleagues noted that a court can “be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Toscanino, 500 F.2d at 274. The Supreme Court had noted such in Ker: “We do not intend to say that there may not" }, { "docid": "8072241", "title": "", "text": "process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fail trial in accordance with constitutional procedural safeguards.” Frisbie, 342 U.S. at 522, 72 S.Ct. 509. The Supreme Court explained in Frisbie that “[tjhere is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.” Id. In the years following Frisbie, however, it appeared in creasingly difficult to reconcile the strict application of its rule with the expanded interpretation of due process expressed by the Court in later cases such as Mapp v. Ohio, 367 U.S. 643, 646, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), in which the Court held that due process requires application of the exclusionary rule in state prosecutions. In 1970, nearly two decades after Frisbie had been decided, we observed that the doctrine’s validity “has been seriously questioned because it condones illegal police conduct.” Gov’t of Virgin Islands v. Ortiz, 427 F.2d 1043, 1045 n. 2 (3d Cir.1970). Four years later, the Second Circuit, citing the “erosion” of the Ker-Frisbie doctrine, carved out an exception to the general rule in United States v. Toscanino, 500 F.2d 267 (2d Cir.1974). The defendant in Toscanino alleged that he had been forcibly abducted from Uruguay and tortured and interrogated over seventeen days at the behest of the United States government. Id. at 269-70. Concluding that the government’s alleged conduct “shocks the conscience,” id. at 273, the Second Circuit held that the Ker-Fris-bie doctrine must yield to the requirements of due process and, accordingly, that a court must “divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights.” Id. at 275. In United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.1975), which the Second Circuit decided shortly after Tos-canino, the court effectively limited its holding in Toscanino to that case’s shocking facts." }, { "docid": "8072243", "title": "", "text": "In Lujan, a federal prisoner claimed that his due process rights had been violated under Toscanino because he had been forcibly abducted in Bolivia and then taken to New York. Id. at 63. Despite the fact that Lujan was forcibly abducted, the Second Circuit applied Ker-Frisbie and refused to order the district court to divest itself of jurisdiction, observing that “the government conduct of which [Lujan] complains pales by comparison with that alleged by Toscanino.” Id. at 66. The court explained that “[l]acking from Lujan’s petition is any allegation of that complex of shocking governmental conduct sufficient to convert an abduction which is simply illegal into one which sinks to a violation of due process.” Id. Subsequent decisions of the Supreme Court indicate that there is reason to doubt the soundness of the Toscanino exception, even as limited to its flagrant facts. A year after Toscanino was decided, the Supreme Court generally reaffirmed the validity of the Ker-Frisbie doctrine, refusing to “retreat from the established rule that illegal arrest or detention does not void a subsequent conviction.” Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). More recently, in United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992), the Court held that the rule of Ker-Frisbie was fully applicable to a case in which a Mexican national had been forcibly abducted, even though the abduction may have been “shocking” and in violation of general international law principles. Id. at 669-70, 112 S.Ct. 2188. In light of these cases, it appears clear that the Ker-Frisbie doctrine has not eroded and that the exception described in Toscanino rests on shaky ground. United States v. Matta-Ballesteros, 71 F.3d 754, 763 (9th Cir.1995) (observing that, “[i]n the shadow cast by Alvarez-Machain, attempts to expand due process rights into the realm of foreign abductions, as the Second Circuit did in [Toscanino], have been cut short”). Even more apparent is that the alleged circumstances surrounding the Coast Guard’s seizure of the defendant in this case do not come close to resembling the “shocking governmental conduct” that" }, { "docid": "8163309", "title": "", "text": "F.2d at 275. In Toscanino, the “unreasonable” invasion of his rights included beatings, denial of sleep for prolonged periods, fluids injected in his eyes and nose, and electric shocks administered to his ears, toes, and genitals. Although the Toscanino court asserted that the Ker-Frisbie doctrine has been eroded by the Supreme Court’s expanded notion of due process, the Supreme Court twice in the last four years has reaffirmed in dictum the vitality of the doctrine, Stone v. Powell, 428 U.S. 465, 485, 96 S.Ct. 3037 (1976); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), and the courts applying Toscanino have treated it as an exception to Ker-Frisbie and construed it narrowly to apply to factual situations as egregious as those in Toscanino, see, e. g., United States v. Lopez, 542 F.2d 283 (5th Cir. 1976) (abduction at “instigation” of United States, but without direct United States involvement in torture, insufficient to divest court of jurisdiction); United States v. Lara, 539 F.2d 495 (5th Cir. 1976) (no Toscanino violation where defendant failed to show direct United States involvement in torture; forcible abduction without more insufficient); United States v. Lira, 515 F.2d 68 (2d Cir. 1975) (no Toscanino violation without showing direct United States involvement); United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir. 1975) (seizure of defendant not in violation of treaty or against wishes of foreign government and no showing of “shocking” conduct by United States agents made Toscanino inapplicable). Sorren admits that the Panamanian and Venezuelan governments were cooperating with the United States, and he provides no evidence of specific instances of acts of torture or other mistreatment inflicted on him by or at the direction of agents of the DEA." }, { "docid": "22048748", "title": "", "text": "equal to an amount necessary to keep him alive. Reminiscent of the horror stories told by our military men who returned from Korea and China, Toscanino was forced to walk up and down a hallway for seven or eight hours at a time. When he could no longer stand he was kicked and beaten but all in a manner contrived to punish without scarring. When he would not answer, his fingers were pinched with metal pliers. Alcohol was flushed into his eyes and nosq and other fluids were forced up his anal passage. Incredibly, these agents of the United States government attached electrodes to Toscanino’s earlobes, toes, and genitals. Jarring jolts of electricity were shot throughout his body, rendering him unconsious for indeterminate periods of time but again leaving no physical scars. “Finally on or about January 25, 1973 Toscanino was brought to Rio de Janeiro where he was drugged by Brazilian-American agents and placed on Pan American Airways Flight # 202 destined for the waiting arms of the United States government. On or about January 26, 1973 he woke in the United States, was arrested on the aircraft, and was brought immediately to Thomas Puccio, Assistant United States Attorney. “At no time during the government’s seizure of Toscanino did it ever attempt to accomplish its goal through any lawful channels whatever. From start to finish the government unlawfully, willingly and deliberately embarked upon a brazenly criminal scheme violating the laws of three separate countries.” The government prosecutor neither affirmed nor denied these allegations but claimed they were immaterial to the district court’s power to proceed. Toscanino alleged further that, prior to his forcible abduction from Montevideo, American officials bribed an employee of the public telephone company to conduct electronic surveillance of him and that the results of the surveillance were given to American agents and forwarded to government prosecutors in New York. According to Toscanino, the telephone company employee was eventually arrested in Uruguay for illegal eavesdropping and was indicted and imprisoned. In connection with these latter allegations Toscanino moved, pursu ant to 18 U.S.C. § 3504, to compel" }, { "docid": "8072242", "title": "", "text": "Islands v. Ortiz, 427 F.2d 1043, 1045 n. 2 (3d Cir.1970). Four years later, the Second Circuit, citing the “erosion” of the Ker-Frisbie doctrine, carved out an exception to the general rule in United States v. Toscanino, 500 F.2d 267 (2d Cir.1974). The defendant in Toscanino alleged that he had been forcibly abducted from Uruguay and tortured and interrogated over seventeen days at the behest of the United States government. Id. at 269-70. Concluding that the government’s alleged conduct “shocks the conscience,” id. at 273, the Second Circuit held that the Ker-Fris-bie doctrine must yield to the requirements of due process and, accordingly, that a court must “divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights.” Id. at 275. In United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.1975), which the Second Circuit decided shortly after Tos-canino, the court effectively limited its holding in Toscanino to that case’s shocking facts. In Lujan, a federal prisoner claimed that his due process rights had been violated under Toscanino because he had been forcibly abducted in Bolivia and then taken to New York. Id. at 63. Despite the fact that Lujan was forcibly abducted, the Second Circuit applied Ker-Frisbie and refused to order the district court to divest itself of jurisdiction, observing that “the government conduct of which [Lujan] complains pales by comparison with that alleged by Toscanino.” Id. at 66. The court explained that “[l]acking from Lujan’s petition is any allegation of that complex of shocking governmental conduct sufficient to convert an abduction which is simply illegal into one which sinks to a violation of due process.” Id. Subsequent decisions of the Supreme Court indicate that there is reason to doubt the soundness of the Toscanino exception, even as limited to its flagrant facts. A year after Toscanino was decided, the Supreme Court generally reaffirmed the validity of the Ker-Frisbie doctrine, refusing to “retreat from the established rule that illegal arrest or detention does not void a" }, { "docid": "8163308", "title": "", "text": "In re Durensky, supra, 519 F.2d at 1029-30; cf. United States v. MacDonald, supra (facts relevant to speedy trial claim may be developed at trial). . Assuming, arguendo, that this circuit were to adopt the Toscanino approach, the allegations and supporting affidavit of Sorren fail to present the level of conduct supporting such a jurisdictional dismissal in the cases following Toscanino. Under the so-called Ker-Frisbie doctrine, the forcible abduction of a criminal defendant into the court’s jurisdiction does not impair the court’s power to try him. See Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1888); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 1344 (1952). In United States v. Toscanino, supra, the Second Circuit held that in light of Supreme Court decisions subsequent to Ker and Frisbie, due process requires a court to divest itself of jurisdiction over the person of a criminal defendant “where it has been acquired as the result of the government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights.” Id., 500 F.2d at 275. In Toscanino, the “unreasonable” invasion of his rights included beatings, denial of sleep for prolonged periods, fluids injected in his eyes and nose, and electric shocks administered to his ears, toes, and genitals. Although the Toscanino court asserted that the Ker-Frisbie doctrine has been eroded by the Supreme Court’s expanded notion of due process, the Supreme Court twice in the last four years has reaffirmed in dictum the vitality of the doctrine, Stone v. Powell, 428 U.S. 465, 485, 96 S.Ct. 3037 (1976); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), and the courts applying Toscanino have treated it as an exception to Ker-Frisbie and construed it narrowly to apply to factual situations as egregious as those in Toscanino, see, e. g., United States v. Lopez, 542 F.2d 283 (5th Cir. 1976) (abduction at “instigation” of United States, but without direct United States involvement in torture, insufficient to divest court of jurisdiction); United States v. Lara, 539 F.2d 495 (5th Cir. 1976) (no Toscanino violation where" }, { "docid": "222537", "title": "", "text": "to assert, without more, that his arrest was illegal. Noriega does not challenge the validity of the Ker-Frisbie rule but instead relies on what is commonly referred to as the Toscanino exception carved out by the Second Circuit. United States v. Toscanino, 500 F.2d 267 (2d Cir.1974). In that case, which also involved a challenge to a court’s exercise of personal jurisdiction, the defendant contended that his presence was illegally obtained through torture and abuse. In support of his claim, the defendant offered to prove that United States officials abducted him from Uruguay and subjected him to extensive and continuous torture, including pinching his fingers with metal pliers, flushing alcohol into his eyes and nose, forcing other fluids up his anal passage, and attaching electrodes to his extremities and genitals. Id. at 270. Confronted with these allegations, the court refused to permit the government the fruits of its misconduct, holding that “we view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights.” Id. at 275. In so holding, the court relied on the Supreme Court’s decision in Rochin v. California, where the Due Process Clause was applied to “the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.” 342 U.S. 165, 172-73, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952). The type of governmental conduct necessary to invoke the Toscanino exception and warrant the drastic remedy of dismissal was subsequently clarified and narrowed by the Second Circuit in United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975) [hereinafter Lujan v. Gengler ]. There, the Court held that due process is violated and dismissal warranted only where the defendant proves “torture, brutality, and similar outrageous conduct.” Id. at 65." }, { "docid": "22048747", "title": "", "text": "as alien to its laws. “Once in the custody of Brazilians, Toscanino was brought to Porto Alegre where he was held incommunicado for eleven hours. His requests to consult with counsel, the Italian Consulate, and his family were all denied. During this time he was denied all food and water. “Later that same day Toscanino was brought to Brasilia. . . . For seventeen days Toscanino was incessantly tortured and interrogated. Throughout this entire period the United States government and the United States Attorney for the Eastern District of New York prosecuting this case was aware of the interrogation and did in fact receive reports as to its progress. Furthermore, during this period of torture and inter- ' rogation a member of the United States Department of Justice, Bureau of Narcotics and Dangerous Drugs was present at one or more intervals and actually participated in portions of the interrogation. . . . [Toscanino’s] captors denied him sleep and all forms of nourishment for days at a time. Nourishment was provided intravenously in a manner precisely equal to an amount necessary to keep him alive. Reminiscent of the horror stories told by our military men who returned from Korea and China, Toscanino was forced to walk up and down a hallway for seven or eight hours at a time. When he could no longer stand he was kicked and beaten but all in a manner contrived to punish without scarring. When he would not answer, his fingers were pinched with metal pliers. Alcohol was flushed into his eyes and nosq and other fluids were forced up his anal passage. Incredibly, these agents of the United States government attached electrodes to Toscanino’s earlobes, toes, and genitals. Jarring jolts of electricity were shot throughout his body, rendering him unconsious for indeterminate periods of time but again leaving no physical scars. “Finally on or about January 25, 1973 Toscanino was brought to Rio de Janeiro where he was drugged by Brazilian-American agents and placed on Pan American Airways Flight # 202 destined for the waiting arms of the United States government. On or about" }, { "docid": "15200860", "title": "", "text": "power of a court to try a person is not affected by the impropriety of the method used to bring the defendant under the jurisdiction of the court. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886). Once the defendant is before the court, the court will not inquire into the circumstances surrounding his presence there. United States ex rel. Calhoun v. Twomey, 454 F.2d 326, 328 (7th Cir. 1971). The Supreme Court recently reaffirmed the continuing validity of the Ker-Frisbie doctrine. Gernstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865-6, 43 L.Ed.2d 54, 68 (1975). We are aware of only one case in which a court departed from this doctrine. In Unit ed States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), the Second Circuit remanded the case for an evidentiary hearing to determine the truth or falsity of defendant’s allegations that he was forcibly abducted by or at the direction of United States officials. Toseanino had allegedly been subject to brutal torture before being returned to the United States, and United States officials allegedly had taken part in the interrogation and torture. The Second Circuit has since made clear that Toscanino should not be read as abolishing the Ker-Frisbie doctrine in that circuit and that it will only apply Toscanino where it is shown that Government agents took part in outrageous conduct which shocks the conscience of that court. United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir. 1975), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668; United States v. Lira, 515 F.2d 68 (2d Cir. 1975), cert. denied, 423 U.S. 847, 96 S.Ct. 87, 46 L.Ed.2d 69 (1976). See Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). In part II of this opinion we held that the United States agents did not significantly participate in events on Grand Cayman Island. No facts have been alleged or proved which could be termed shocking to the conscience. Toscanino is" }, { "docid": "6092192", "title": "", "text": "Korea and China, Toscanino was forced to walk up and down a hallway for seven or eight hours at a time. When he could no longer stand he was kicked and beaten but all in a manner contrived to punish without scarring. When he would not answer, his fingers were pinched with metal pliers. Alcohol was flushed into his eyes and nose and other fluids ... were forced up his anal passage. Incredibly, these agents of the United States government attached electrodes to Tos-canino’s earlobes, toes, and genitals. Jarring jolts of electricity were shot throughout his body, rendering him unconscious for indeterminate periods of time but again leaving no physical scars. Id. at 270. Despite the truly revolting circumstances that were alleged in Toscanino, its due process holding is of doubtful validity. To the extent that Toscanino was based on the Second Circuit’s belief that the Ker-Frisbie doctrine may no longer be good law, its rationale has been substantially undermined by subsequent Supreme Court decisions that have wholeheartedly and repeatedly reaffirmed the Ker-Frisbie rule. See, e.g., Lopez-Mendoza, 468 U.S. at 1039-40, 104 S.Ct. at 3483-84; United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537 (1980); id. at 477-79, 100 S.Ct. at 1253-54 (Powell, J., concurring in part) (White, J., concurring in result) (majority of court reaffirming Frisbie); Stone v. Powell, 428 U.S. 465, 485, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976) (Stone); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975). Indeed, the majority acknowledges that in a case following Toscanino, the Second Circuit clarified that its due process holding in Toscanino was largely impelled by the outrageous acts of kidnap and torture conducted by United States agents. See United States ex rel. Lujan v. Gengler, 510 F.2d 62, 65-66 (2d Cir.) (Gengler), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975). Although it was not confronted with a fourth amendment issue in that case, the Second Circuit in Gengler held that absent “the use of torture, brutality and similar outrageous conduct” condemned in" }, { "docid": "14498105", "title": "", "text": "States. See id. at 269. The question before the Second Circuit was whether the court could exercise its jurisdiction if the defendant proved that such outrageous acts had occurred. See id. at 271. Under the long-standing Ker-Frisbie doctrine, the manner in which an indicted individual comes before a court does not affect the court’s jurisdiction. See Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886). Thus, a federal court generally has jurisdiction over a foreign national whenever he has been brought before the court even if the appearance is involuntarily. See, e.g., United States v. Alvarez-Machain, 504 U.S. 655, 669-70, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992). After holding that the Ker-Frisbie doctrine could no longer stand as an absolute bar to judicial inquiry into how the defen dant was brought before the court, the Second Circuit held: [W]e view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it had been acquired as the result of the government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights. Toscanino, 500 F.2d at 275. Accordingly, the court remanded the case to the district court to determine if Toscanino’s allegation could be proved. A year after Toscanino, the Second Circuit emphasized that it “did not intend to suggest [in Toscanino] that any irregularity in the circumstances of a defendant’s arrival in the jurisdiction would vitiate the proceedings of the criminal court.” United States ex rel. Lujan v. Gengler, 510 F.2d 62, 65 (2d Cir.1975). Toscanino’s holding is nonetheless remarkable because it requires dismissal of an indictment even when the constitutional violations have no connection to defendant’s crime or to the fairness of the trial. Toscanino did not allege that the government’s conduct caused him to sell drugs in the United States. Nor did he claim that the government discovered any evidence during the abduction or torture that it then used against him in its prosecution. Given that Toscanino requires courts to relinquish their jurisdiction" }, { "docid": "23050074", "title": "", "text": "and electricity was shot throughout his body, leaving him unconscious for periods of time. Throughout this period, Toscanino asserted, the United States government and the United States Attorney for the Eastern District of New York were aware of the interrogation and received reports of its progress. Moreover, a member of the Bureau of Narcotics and Dangerous Drugs of the Department of Justice was present at times, and actually participated in some of the interrogation. Eventually, Toscanino claimed, he was drugged and flown to New York. He awakened when the aircraft reached the United States. Upon landing and while still aboard he was arrested. The district court never held a hearing with respect to Toscanino’s allegations. On the appeal from his conviction, we held that Toscanino had alleged a violation of due process which, if proved, would require the district court to divest itself of jurisdiction over him. Our opinion recognized the traditional rule, set forth in a line of cases from Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886) to Frisbie v. Collins, 342.U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), declaring that the manner in which a defendant was brought into the United States did not affect the court’s power to proceed. The Ker-Frisbie doctrine was rooted in the perception that due process of law is satisfied when one present in court is convicted of crime after being fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. Frisbie, 342 U.S. at 522, 72 S.Ct. at 512. Its effect was to render “police brutality and lawlessness,” Toscanino, 500 F.2d at 272, involved in obtaining jurisdiction over the defendant almost wholly immune from judicial scrutiny. Toscanino viewed the Ker-Frisbie doctrine, however, as not preventing judicial scrutiny of conduct of the most outrageous and reprehensible kind by United States government agents, because of recent pronouncements by the Supreme Court in the area. Id. at 272-275. Any other approach, Toscanino declared, would be inconsistent with cases refusing to permit the government to benefit from illegal police conduct in" }, { "docid": "222536", "title": "", "text": "Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952). This Circuit’s adherence to the Ker-Frisbie doctrine was firmly established in United States v. Winter, in which the former Fifth Circuit declared: [W]e are convinced that under well established case law of the Supreme Court and this Circuit, a defendant in a criminal trial whether citizen or alien, whether arrested within or beyond the territory of the United States, may not successfully challenge the District Court’s jurisdiction over his person on the grounds that his presence was unlawfully secured. 509 F.2d at 985-86. See also United States v. Rosenthal, 793 F.2d 1214, 1231 (11th Cir.1986), cert. denied, 480 U.S. 919, 107 S.Ct. 1377, 94 L.Ed.2d 692 (1987); United States v. Postal, 589 F.2d at 873 (“A defendant may not ordinarily assert the illegality of his obtention to defeat the court’s jurisdiction over him.”). Thus, in order to divest the Court of jurisdiction, it is not enough for the defendant to assert, without more, that his arrest was illegal. Noriega does not challenge the validity of the Ker-Frisbie rule but instead relies on what is commonly referred to as the Toscanino exception carved out by the Second Circuit. United States v. Toscanino, 500 F.2d 267 (2d Cir.1974). In that case, which also involved a challenge to a court’s exercise of personal jurisdiction, the defendant contended that his presence was illegally obtained through torture and abuse. In support of his claim, the defendant offered to prove that United States officials abducted him from Uruguay and subjected him to extensive and continuous torture, including pinching his fingers with metal pliers, flushing alcohol into his eyes and nose, forcing other fluids up his anal passage, and attaching electrodes to his extremities and genitals. Id. at 270. Confronted with these allegations, the court refused to permit the government the fruits of its misconduct, holding that “we view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been" }, { "docid": "6092191", "title": "", "text": "may be “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Id. at 431-32, 93 S.Ct. at 1643. But the reasoning that underlies Rochin and its progeny stems not from the fourth but the fifth amendment. Analyzed under the fifth amendment, Toscanino could be harmonized with other precedent. See 500 F.2d at 281 (Anderson, J., concurring in the result). Toscanino alleged circumstances surrounding the seizure of his person and delivery into the court’s jurisdiction which would offend the sensibilities of any civilized person. He was allegedly taken blindfolded and at gunpoint to Brazil and held captive for three weeks of interrogation while being subjected to inhumane forms of physical torture by United States officials. Id. at 269-70. According to Tos-canino, his captors denied him sleep and all forms of nourishment for days at a time. Nourishment was provided intravenously in a manner precisely equal to an amount necessary to keep him alive. Reminiscent of the horror stories told by our military men who returned from Korea and China, Toscanino was forced to walk up and down a hallway for seven or eight hours at a time. When he could no longer stand he was kicked and beaten but all in a manner contrived to punish without scarring. When he would not answer, his fingers were pinched with metal pliers. Alcohol was flushed into his eyes and nose and other fluids ... were forced up his anal passage. Incredibly, these agents of the United States government attached electrodes to Tos-canino’s earlobes, toes, and genitals. Jarring jolts of electricity were shot throughout his body, rendering him unconscious for indeterminate periods of time but again leaving no physical scars. Id. at 270. Despite the truly revolting circumstances that were alleged in Toscanino, its due process holding is of doubtful validity. To the extent that Toscanino was based on the Second Circuit’s belief that the Ker-Frisbie doctrine may no longer be good law, its rationale has been substantially undermined by subsequent Supreme Court decisions that have wholeheartedly and repeatedly reaffirmed the Ker-Frisbie rule. See," }, { "docid": "10784305", "title": "", "text": "II TOSCANINO OBJECTION Appellant argues that the trial judge should have dismissed the indictment because of the alleged complicity of the United States in his torture and kidnapping in Peru. See United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974); see generally Annot., 28 A.L.R.Fed. 685 (1976). Appellant does not argue that any evidence was illegally seized; rather, he argues that the indictment should have been dismissed because of police conduct “shocking to the conscience.” Toscanino certainly did involve conduct shocking to the conscience. In that case, defendant had offered to prove direct complicity by United States agents in the forcible kidnapping, torture, and illegal extradition of defendant. The Toscanino court found that the case fit within an exception to the Ker-Frisbie doctrine, which otherwise bars inquiry into the manner by which a defendant arrives in the court’s jurisdiction. The court held that where Government conduct results in a deliberate, unnecessary, and unreasonable invasion of the accused’s constitutional rights, see Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1951), dismissal of the indictment is appropriate. 500 F.2d at 275. In the Second Circuit itself, the reach of Toscanino has been limited. In United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975), the court reaffirmed the applicability of the Ker-Frisbie doctrine except in situations involving Government conduct “of a most shocking and outrageous character.” Id. at 65. Thus, it held that even an illegal abduction did not necessarily amount to a due process violation, especially where there was no showing that the United States was involved in the original arrest and detention. In sum, “Lujan charges no deprivation greater than that which he would have endured through lawful extradition.” Id. at 66. See also United States v. Lira, 515 F.2d 68 (2d Cir.), cert. denied, 423 U.S. 847, 96 S.Ct. 87, 46 L.Ed.2d 69 (1975). The Ninth Circuit has not had occasion to apply the Toscanino rule. In United States v. Lovato, 520 F.2d 1270 (9th Cir.) (per curiam), cert. denied," }, { "docid": "14498104", "title": "", "text": "not come close to making the threshold showing required to justify even a hearing”\"on the motion. Id. at 49. The government is partially correct: The alleged abuse is not so outrageous as warrant a dismissal under Toscanino and its progeny. As I explain below, however, this does not end the inquiry into whether Awadallah’s due process rights were violated. 1. Toscanino In Toscanino, an Italian national, Francisco Toscanino, alleged that Brazilian officials in cooperation with United States agents kidnapped him while he was living in Uruguay. See Toscanino, 500 F.2d at 269. Toscanino was then brought to Brasilia, where he was incessantly and brutally tortured over seventeen days by Brazilians acting as agents of the United States government. See id. at 270. Moreover, according to Toscanino, a member of the Department of Justice participated in the interrogation and an Assistant U.S. Attorney was provided reports of the torture. See id. Toscanino was then flown to the United States where he was arrested and convicted by a jury for conspiring to import drugs into the United States. See id. at 269. The question before the Second Circuit was whether the court could exercise its jurisdiction if the defendant proved that such outrageous acts had occurred. See id. at 271. Under the long-standing Ker-Frisbie doctrine, the manner in which an indicted individual comes before a court does not affect the court’s jurisdiction. See Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886). Thus, a federal court generally has jurisdiction over a foreign national whenever he has been brought before the court even if the appearance is involuntarily. See, e.g., United States v. Alvarez-Machain, 504 U.S. 655, 669-70, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992). After holding that the Ker-Frisbie doctrine could no longer stand as an absolute bar to judicial inquiry into how the defen dant was brought before the court, the Second Circuit held: [W]e view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant" }, { "docid": "10784306", "title": "", "text": "of the indictment is appropriate. 500 F.2d at 275. In the Second Circuit itself, the reach of Toscanino has been limited. In United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975), the court reaffirmed the applicability of the Ker-Frisbie doctrine except in situations involving Government conduct “of a most shocking and outrageous character.” Id. at 65. Thus, it held that even an illegal abduction did not necessarily amount to a due process violation, especially where there was no showing that the United States was involved in the original arrest and detention. In sum, “Lujan charges no deprivation greater than that which he would have endured through lawful extradition.” Id. at 66. See also United States v. Lira, 515 F.2d 68 (2d Cir.), cert. denied, 423 U.S. 847, 96 S.Ct. 87, 46 L.Ed.2d 69 (1975). The Ninth Circuit has not had occasion to apply the Toscanino rule. In United States v. Lovato, 520 F.2d 1270 (9th Cir.) (per curiam), cert. denied, 423 U.S. 985, 96 S.Ct. 392, 46 L.Ed.2d 302 (1975), we determined that no Toscanino showing had been made. At most, in that case, the defendant had established that he had been forcibly expelled from Mexico into the arms of the United States officers. The Ker-Frisbie doctrine squarely applied. Id. at 1271. We explained that the Toscanino case, as limited by Lujan, provided that the Ker-Frisbie doctrine applied unless the defendant “makes a strong showing of grossly cruel and unusual barbarities inflicted upon him by persons who can be characterized as paid agents of the United States.” Id. (citations omitted) (emphasis added). Appellant in the present case has made no such showing. His attempts to connect federal agents to the Peruvian mistreatment were at best ephemeral, and were contradicted by the agent in place. The District Court explained that although the treatment in the Peruvian jail was outrageous “there is no showing whatsoever that the United States participated in any of that conduct, and while there is some question about whether the Embassy representatives were" } ]

[ { "docid": "2718161", "title": "", "text": "Bankruptcy Code, if it has essentially “no existence outside of the bankruptcy”); see also IDEA Boardwalk, LLC, 532 B.R. at 223. Even more, these actions plainly require the interpretation of the Rejection and Sales Order, both of which the Bankruptcy Court entered pursuant to the applicable portions of the Bankruptcy Code. As a result, these actions also qualify for “arising] under” jurisdiction within the meaning of 28 U.S.C. § 1334(b). 16. For all of these reasons, Polo North’s motions to dismiss to the Original Action and to remand the Removed Action will be denied. An accompanying Order will be entered. . By Order dated August 21, 2015, the Court resolved to address the jurisdictional issue presented in these actions in a single, consolidated decision. See ACR Energy Partners, LLC v. Polo North Country Club, Inc., 309 F.R.D. 193, 195 (D.NJ.2015). . For purposes of the pending motions, the Court accepts as true the facts set forth in ACR’s Amended Complaint in the Original Action and Polo North's initial Complaint in the Removed Action, together with the exhibits attached to the Complaints, documents explicitly relied upon in the Complaints, and matters of public record. See Schmidt v. Sko-las, 770 F.3d 241, 249 (3d Cir.2014). Here, the material portions of each Complaint are substantively identical, and the Complaints either attach or explicitly rely upon the same documents — particularly, the ESA and ground lease, explained below. For these reasons, the Court finds it appropriate to discuss the allegations of these Complaints together and will, in the interests of simplicity, primarily, refer to the Amended Complaint filed in the Original Action, unless otherwise indicated. .ACR filed its Amended Complaint in the Original Action on April 17, 2015 [see Docket Item 13 in the Original Action], and it removed Polo North’s Complaint in the Removed Action on July 7, 2015. [See Docket Item 1 in the Removed Action.] . Revel and ACR executed an initial ESA on February 17, 2011, followed by the first amended and restated ESA on March 8, 2011. (See Am. Compl. at ¶ 10.) . Polo North has, since that" } ]

[ { "docid": "20615341", "title": "", "text": "to Induce Infringement. LO s 2. Defendants Have Raised a Substantial Question of Invalidity. § B. Otsuka Has Not Demonstrated that it Will Suffer Immediate and Irreparable Harm in the Absence of an Injunction as a result of the Market Entry of these Defendants’ Aripiprazole Products. ^ o <X> 1. Otsuka’s Alleged Harms Are Quantifiable. cn o O Otsuka Has Not Met the “Causal Nexus” or © to 3. Otsuka’s Delay in Requesting Injunctive Relief Suggests Lack of Urgency . or o 00 C. The Balance of Hardships Favors these Defendants. cjx o CR D. The Public Interest Counsels against the Issuance an Injunction VI. CONCLUSION. .507 I. INTRODUCTION These related patent infringement actions under the Hatch-Waxman Act, 35 U.S.C. §§ 271, 281, generally concern Plaintiff Otsuka Pharmaceutical Co., Ltd.’s (hereinafter, “Otsuka”) position that various defendants’ submissions of abbreviated new drug applications (hereinafter, “AN-DAs”) infringe one or more claims of the various patents covering Otsuka’s Ability® aripiprazole product, U.S. Patent Nos. 5,006,528 (“the '528 patent”), 7,053,092 (“the '092 patent”), 8,017,615 (“the '615 patent”), 8,580,796 (“the '796 patent”), 8,642,600 (“the '600 patent”), 8,642,760 (“the '760 patent”), and 8,759,350 (“the '350 patent”). As the lengthy exclusivity period for the original compound patent covering Ability®, the '528 patent, comes to close on April 20, 2015, Otsuka moves to enjoin these Defendants from launching generic aripiprazole products on or after-April 20, 2015. Otsuka’s present motions for a Temporary Restraining Order and preliminary injunctive relief concern, in particular, the following generic Defendants and their requests for FDA approval of the following AND As: 1. Torrent Pharmaceuticals Limited, Inc., Torrent Pharma Inc., and Hetero Labs Limited (collectively, “Torrent”), Civil Action Nos. 14-1078 ' (JBS/KMW), 144671 (JBS/KMW), seek FDA approval to sell generic aripiprazole [redacted]; 2. Alembic Pharmaceuticals Limited, Alembic Limited, Alembic Global Holding Sa, and Alembic Pharmaceuticals Inc. (collectively, “Alembic”), Civil Action Nos. 142982 (JBS/KMW), 14-7405 (JBS/KMW), seek FDA approval to sell generic aripiprazole [redacted]; 3. Zydus Pharmaceuticals USA, Inc., and Cadila Healthcare Limited (collectively, “Zydus”), Civil Action No. 143168 (JBS/KMW), seek FDA approval to sell generic aripiprazole [redacted]; 4. Sun Pharmaceutical Industries Ltd., Sun Pharma" }, { "docid": "2684419", "title": "", "text": "antitrust standing. Id. (citation omitted). In other words, in the absence of a plausible allegation of antitrust injury, the only factor presently challenged by Otsuka, the Court need not reach the remaining factors. 11. As stated by this Court in Torrent, In order to plead an antitrust injury, the party must allege facts showing (1) that it suffered an injury of the type the antitrust laws seek to prevent, e.g., anti-competitive behavior, and (2) that the injury resulted from the adversary’s unlawful or anticompetitive acts. See In re Niaspan Antitrust Litig., 42 F.Supp.3d 735, 753 (E.D.Pa.2014) (quoting In re K-Dur Antitrust Litig., 338 F.Supp.2d 517, 534 (D.N.J.2004)). The federal antitrust laws, however, foster “ ‘the protection of competition not competitors.’ ” Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 76-77 (3d Cir.2010); see also Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977) (citation omitted) (noting that Congress enacted the antitrust laws “for ‘the protection of competition, not competitors’”). As a result, the pleaded facts must show “that ‘the challenged action has had an actual adverse effect on competition as a whole in the relevant market,’ ” rather than just an adverse effect on the particular competitor. Irish v. Ferguson, 970 F.Supp.2d 317, 365 (M.D.Pa.2013) (citations omitted); see also Eichorn v. AT & T Corp., 248 F.3d 131, 140 (3d Cir.2001) (noting that an antitrust injury does not lie unless the allegedly anticompetitive conduct “has a wider impact on the [overall] competitive market”). Torrent, 118 F.Supp.3d at 652-53, 2015 WL 3869677, at *4 (footnote omitted). 12. The Court rejects, at the outset, Otsuka’s position that Apotex cannot, under Ethypharm S.A. France, be considered a competitor for purposes of antitrust standing, due to its lack of FDA approval. {See Otsuka’s Br. at 5-6.) In Ethypharm S.A. France, the Court of Appeals for the Third Circuit found the plaintiff could not “be considered a competitor for purposes of antitrust injury,” because “legal barriers particular to the pharmaceutical market” precluded the plaintiffs from marketing a competing product. 707 F.3d at 236." }, { "docid": "6156999", "title": "", "text": "14-7252 (JBS/KMW); Otsuka Pharm. Co., Ltd. v. Alembic Pharm., Ltd., Civil Action No. 14-7405 (JBS/KMW); Otsuka Pharm. Co., Ltd. v. Apotex Corp., Civil Action No. 14-8074 (JBS/KMW); Otsuka Pharm. Co., Ltd. v. Hetero Drugs, Ltd., Civil Action No. 15-161 (JBS/KMW); Otsuka Pharm. Co., Ltd. v. Amneal Pharm. Co., Ltd., Civil Action No. 15-1585 (JBS/KMW); Otsuka Pharm. Co., Ltd. v. Sandoz Inc., Civil Action No. 15-1716 (JBS/KMW); Otsuka Pharm. Co., Ltd. v. Indoco Remedies Ltd., Civil Action No. 15-1967 (JBS/KMW). . In deciding the pending motion to dismiss, the Court \"may take judicial notice of public records [or documents] of the FDA” relating to the aripiprazole products at issue in this litigation. Kaiser v. Depuy Spine, Inc., 944 F.Supp.2d 1187, 1192 n. 2 (M.D.Fla.2013) (citation omitted); see also Rollins v. St. Jude Med., 583 F.Supp.2d 790, 805 (W.D.La.2008) (citation omitted) (same). . For that reason, the Court rejects Otsuka’s reliance upon Ethypharm S.A. France. Indeed, in Ethypharm S.A. France, the Court of Appeals for the Third Circuit found the plaintiff could not \"be considered a competitor for purposes of antitrust injury,” because \"legal barriers particular to the pharmaceutical market” precluded the plaintiff's from marketing a competing product. 707 F.3d at 236. Here, however, the legal barriers that once plagued Torrent’s ability to enter the aripipra-zole market j namely, expiration of the '528 Patent and final FDA approval, no longer present any impediment. Therefore, in the absence of this litigation, Torrent could immediately become, without reticence, Otsuka's lawful competitor. .Nor are direct factual allegations of Torrent’s chances of litigation success required; \"inferential allegations” can suffice. See In re Niaspan Antitrust Litig., 42 F.Supp.3d at 757 n. 18 (citations omitted). . Torrent’s submission of Paragraph IV certification under 21 U.S.C. § 355(j)(2)(A)(vii) compels no different result. Indeed, in its ■■ Paragraph IV certification, Torrent specifically certified that the Torrent aripiprazole tablets would \"not infringe any valid claim of the '615 and” '796 patents.\" (Countered, at ¶ 15.) In that respect, even though Torrent’s certification provided the technical act of constructive infringement necessary to initiate an action under 35 U.S.C. § 271(e)(2)(A), nothing in" }, { "docid": "2684418", "title": "", "text": "to demonstrate a plausible “entitlement to relief.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir.2008). 9. As stated above, Otsuka moves to dismiss Apotex’s antitrust Counterclaim for lack of standing and on immunity grounds, and moves to dismiss Apotex’s patent misuse Counterclaim for failure to state a plausible claim for relief. For substantially the reasons stated in Torrent, the Court will deny Otsuka’s motion to the extent it seeks the dismissal' of Apotex’s Counterclaims. Nevertheless, the Court will briefly address each issue in turn. 10. A party suing under federal antitrust laws, as here, must meet the prudential requirement of “ ‘antitrust standing.’ ” Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223, 232 (2d Cir.2013) (citation omitted). In Ethypharm S.A France, the Court of Appeals for the Third Circuit outlined a five-factor test, with the second, “antitrust injury,” constituting the essential precondition for antitrust standing. Id. (citation omitted). In other words, in the absence of a plausible allegation of antitrust injury, the only factor presently challenged by Otsuka, the Court need not reach the remaining factors. 11. As stated by this Court in Torrent, In order to plead an antitrust injury, the party must allege facts showing (1) that it suffered an injury of the type the antitrust laws seek to prevent, e.g., anti-competitive behavior, and (2) that the injury resulted from the adversary’s unlawful or anticompetitive acts. See In re Niaspan Antitrust Litig., 42 F.Supp.3d 735, 753 (E.D.Pa.2014) (quoting In re K-Dur Antitrust Litig., 338 F.Supp.2d 517, 534 (D.N.J.2004)). The federal antitrust laws, however, foster “ ‘the protection of competition not competitors.’ ” Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 76-77 (3d Cir.2010); see also Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977) (citation omitted) (noting that Congress enacted the antitrust laws “for ‘the protection of competition, not competitors’”). As a result, the" }, { "docid": "2684420", "title": "", "text": "pleaded facts must show “that ‘the challenged action has had an actual adverse effect on competition as a whole in the relevant market,’ ” rather than just an adverse effect on the particular competitor. Irish v. Ferguson, 970 F.Supp.2d 317, 365 (M.D.Pa.2013) (citations omitted); see also Eichorn v. AT & T Corp., 248 F.3d 131, 140 (3d Cir.2001) (noting that an antitrust injury does not lie unless the allegedly anticompetitive conduct “has a wider impact on the [overall] competitive market”). Torrent, 118 F.Supp.3d at 652-53, 2015 WL 3869677, at *4 (footnote omitted). 12. The Court rejects, at the outset, Otsuka’s position that Apotex cannot, under Ethypharm S.A. France, be considered a competitor for purposes of antitrust standing, due to its lack of FDA approval. {See Otsuka’s Br. at 5-6.) In Ethypharm S.A. France, the Court of Appeals for the Third Circuit found the plaintiff could not “be considered a competitor for purposes of antitrust injury,” because “legal barriers particular to the pharmaceutical market” precluded the plaintiffs from marketing a competing product. 707 F.3d at 236. In so finding, however, the Third Circuit relied upon the fact that the plaintiff acted only as the foreign manufacturer of the product, and could not “directly supply the United States market” with the disputed drug. Id. Indeed, the plaintiff had specifically relinquished its right to sell and distribute the product in the United States through a third-party license agreement. Id. In other words, the Third Circuit’s determination did not hinge upon the status of the plaintiffs FDA approval, and the legal barriers actually' identified by, and relied upon, in Ethypharm S.A. France are plainly absent here, because Otsuka’s own Amended Complaint identifies Apotex’s intention to manufacture and directly distribute/sell its proposed generic aripiprazole product. (See Am. Compl. at ¶ 6.) 13. Moreover, if the Court accepted Ot-suka’s position, “antitrust standing under the Hatch-Waxman Act would be wholly contingent on the vagaries of the timing of agency action.” Bristol-Myers Squibb Co. v. Ben Venue Labs., 90 F.Supp.2d 540, 545 (D.N.J.2000). This would, in turn, create an “anomalous” result, because generic defendants have “little practical incentive”" }, { "docid": "6156982", "title": "", "text": "and therefore interposes no present barrier to Torrent’s entry into the aripiprazole market as Otsuka’s active competitor. Nor does the status of Torrent’s FDA approval render the alleged injury any less imminent, because the FDA’s own records reflect that Torrent obtained final FDA approval for its ANDA product on April 28, 2015. See Press Release, FDA, FDA approves first generic Abilify to treat mental illnesses (Apr. 28, 2015), available at, http://www.fda.gov/NewsEvents/ Newsroom/PressAnnouncements/ucm 444862.htm. As a result, the pendency of this litigation constitutes the only encumbrance to Torrent’s free ability to enter the aripiprazole market, rendering the alleged injuries both real and immediate. Moreover, even if Torrent’s Counterclaim relies, at least in part, upon some ultimate facts, such as that. Otsuka’s actions evince a “specific intent to restrain competition,” (id. at ¶45), Torrent need not “ ‘plead detailed evidentiary matter in order to survive a motion to dismiss.’ ” In re Niaspan Antitrust Litig., 42 F.Supp.3d at 756 (citations omitted). Rather, the inquiry for purposes of the pending motion to dismiss turns upon the plausibility of the allegations, not upon whether Torrent has “alleged sufficient facts to ‘compel’ the inference” that Otsuka committed the alleged violations. Id. Here, Torrent’s allegations, accepted as true, support an inference that Torrent has suffered an antitrust law injury flowing from Otsuka’s allegedly anticompetitive conduct. (See generally Countercl.) These allegations therefore suffice at the pleading stage to state a plausible claim for relief, particularly given the fact that the existence of antitrust injury “involves complex questions of fact,” often ill-suited for resolution upon a “motion[ ] to dismiss.” Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir.1997) (citing Brader v. Allegheny Gen. Hosp., 64 F.3d 869, 876 (3d Cir.1995) (collecting cases)); see also In re Niaspan Antitrust Litig., 42 F.Supp.3d at 757 n. 19 (collecting cases that have declined to resolve the existence of antitrust injury through motions to dismiss). For all of these reasons, the Court rejects Otsuka’s argument that Torrent’s antitrust Counterclaim should be dismissed for lack of antitrust standing, and turns to Otsuka’s position that Noerr-Pennington" }, { "docid": "2684416", "title": "", "text": "Sherman and Clayton Acts, 15 U.S.C. §§ 2, 15, and 26. {Id. at ¶¶ 72-110.) 6. Apotex’s patent misuse Counterclaim largely reiterates the allegations of its antitrust Counterclaim, and specifically alleges that Otsuka filed this action without “any good faith factual or legal basis” to support its infringement positions, and for purposes of delaying Apotex’s entry into the marketplace for aripiprazole tablets. {Id. at ¶¶ 111-14.) Apotex further alleges that Otsuka has, in filing and prosecuting this “baseless” action, “impermissi-bly broadened the physical or temporal scope” of the Patents-in-Suit and asserted the patents in order “to obtain a market benefit beyond that which inheres in the statutory patent right.” {Id. at ¶¶ 115-16.) 7. In moving to dismiss, Otsuka argues, as it did in connection with substantially similar counterclaims in Torrent, 118 F.Supp.3d 646, 2015 WL 3869677, that Apotex’s antitrust and patent misuse Counterclaims must be dismissed, because Apotex has not alleged the “anticompeti-tive” or “antitrust injury” required for antitrust standing, because Apotex’s “cursory conclusions” fail to plausibly overcome Ot-suka’s Noerr-Pennington immunity, and because Apotex’s patent misuse counterclaim fails as a matter of law to state a cognizable claim for patent misuse. {See Otsuka’s Br. at 5-11; Otsuka’s Reply at 1-5.) In the alternative, Otsuka requests that the Court follow the “ ‘standard practice’ ” of bifurcating for trial the patent issues raised in this litigation from the antitrust and/or patent misuse issues. (Otsuka’s Br. at 12 (citations omitted); Ot-suka’s Reply at 6.) 8. Under Federal Rule of Civil Procedure 12(b)(6), the court must generally accept as true the factual allegations of the defendant’s counterclaims, and construe all “reasonable inferences” in the light most favorable to the defendant. Revell v. Port Auth. of N.Y., N.J., 598 F.3d 128, 134 (3d Cir.2010); see also Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir.2012) (same). However, “[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” fails to suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Rather, the “well-pled factual allegations” must be sufficient" }, { "docid": "2684431", "title": "", "text": "the extent it seeks dismissal of Apotex’s antitrust and patent misuse Counterclaims. Torrent’s antitrust and patent misuse Counterclaims will, however, be bifurcated and stayed, pending resolution of the patent infringement issues. 27. An accompanying Order will be entered. . Following the Court’s decision in Torrent, Apotex sought leave to file a sur-reply, in order to address the decision’s potentially \"dispositive” impact on the pending motion. [Docket Item 142.] Because the Torrent decision directly impacts the pending motion, the Court has considered Apotex’s sur-reply. On the other hand, Otsuka’s reply brief, filed on June 29, 2015, seven days after the Torrent Opinion of essentially the identical issues in the related case, makes no mention of the Torrent decision. (See Otsuka’s Reply.) . The Court's decision in Torrent provides a detailed discussion of the background of this \"prudential requirement,” together with an explanation of the differences between Article III constitutional standing and antitrust standing. 118 F.Supp.3d at 652, 2015 WL 3869677, at *4. . Indeed, the Third Circuit expressly distinguished its decision from the situation where, as here, the plaintiff has “filed a Drug Master File with the FDA and 'set forth other required information for FDA approval’ of its drug.” 707 F.3d at 236 n. 20 (quoting Chemi SpA v. GlaxoSmithKline, 356 F.Supp.2d 495, 497 (E.D.Pa.2005)). . As in Torrent, the Court again notes that Otsuka has initiated litigation against every ANDA filer. See Torrent, 118 F.Supp.3d at 654 n. 6, 2015 WL 3869677, at *5 n. 6 (noting Otsuka’s filings as a matter of public record). Indeed, following Torrent, Otsuka filed its twenty-sixth related infringement action against an ANDA filer. See Otsuka Pharm. Co., Ltd. v. Macleods Pharms. Ltd., Civil Action No. 15-5109 (JBS/KMW) (filed July 2, 2015). . Moreover, the existence of antitrust injury \"involves complex questions of fact,” ill-suited for resolution upon a motion to dismiss. Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir.1997) (citing Brader v. Allegheny Gen. Hosp., 64 F.3d 869, 876 (3d Cir.1995) (collecting cases)); see also In re Niaspan Antitrust Litig., 42 F.Supp.3d at 757 n." }, { "docid": "2684421", "title": "", "text": "In so finding, however, the Third Circuit relied upon the fact that the plaintiff acted only as the foreign manufacturer of the product, and could not “directly supply the United States market” with the disputed drug. Id. Indeed, the plaintiff had specifically relinquished its right to sell and distribute the product in the United States through a third-party license agreement. Id. In other words, the Third Circuit’s determination did not hinge upon the status of the plaintiffs FDA approval, and the legal barriers actually' identified by, and relied upon, in Ethypharm S.A. France are plainly absent here, because Otsuka’s own Amended Complaint identifies Apotex’s intention to manufacture and directly distribute/sell its proposed generic aripiprazole product. (See Am. Compl. at ¶ 6.) 13. Moreover, if the Court accepted Ot-suka’s position, “antitrust standing under the Hatch-Waxman Act would be wholly contingent on the vagaries of the timing of agency action.” Bristol-Myers Squibb Co. v. Ben Venue Labs., 90 F.Supp.2d 540, 545 (D.N.J.2000). This would, in turn, create an “anomalous” result, because generic defendants have “little practical incentive” to .pursue final agency approval during the pendency of infringement actions, and are often “better served” by directing “their resources toward defense of the infringement action.” Id. For these reasons, the Court holds that Apotex has standing as a competitor for purposes of an antitrust injury because it is an ANDA filer intending to manufacture and directly distribute generic aripiprazole in the United States market awaiting final FDA approval. The Court next addresses whether Apotex’s allegations prove otherwise sufficiently plausible on the issue of antitrust injury. 14. The “hallmark” for evaluating the plausibility of an allegation of antitrust injury is whether “the actions alleged to be anticompetitive when viewed ‘as a whole’ bear consequence for the overall market, rather than only for an individual competitor.” Torrent, 118 F.Supp.3d at 653, 2015 WL 3869677, at *5 (quoting TransWeb, LLC v. 3M Innovative Props. Co., No. 10-4413, 2011 WL 2181189, at *18 (D.N.J. June 1, 2011)). Here, Apotex’s antitrust Counterclaim alleges, in essence, that Otsuka has initiated meritless infringement actions and subsequently pursued preliminary injunctions against ANDA" }, { "docid": "6156970", "title": "", "text": "Act (hereinafter, the “Orange Book”), 21 U.S.C. § 355(j), Otsu-ka identifies the '615 patent and the '796 patent, both of which Otsuka owns by virtue of assignment. (Id. at 14, ¶¶ 17, 26, 29.) The listing, in particular, discloses Abilify®’s active ingredient as “aripipra-zole,” the dosage form as a “tablet” or “oral,” and the strengths as 2 mg, 5 mg, 10 mg, 15 mg, 20 mg, and 30 mg. (Counterclaim at ¶13 (quotation marks omitted).) In late 2013, Torrent filed ANDA No. 20-1519 with the FDA, seeking approval to market generic 2 mg, 5 mg, 10 mg, 15 mg, 20 mg, and 30 mg aripiprazole tablets in the United States, prior to the expiration of the '615 and the '796 patents. (See Countercl. at ¶ 14.) Torrent’s ANDA fíl-ing included a “paragraph IV certification” pursuant to 21 U.S.C. § 355(j)(2)(A)(vii)(IV), in which Torrent set forth its assertion that the Abilify® patents would not be infringed by the commercial manufacture, use, or sale of Torrent’s generic product. (See id.) On January 4, 2014, Torrent mailed notice of its ANDA certification to Otsuka, and provided “a detailed statement of the factual and legal bases of Torrent’s ANDA certifications for the '615 and '796 patents,” i.e., a detailed explanation of the bases for Torrent’s position that its generic aripiprazole tablets would “not infringe any valid or enforceable claim of the Orange Book-listed '615 and '796 patents.” (Id. at ¶ 15.) In order to substantiate its non-infringement position, Torrent then provided the relevant portions of its ANDA on February 20, 2014. (Id. at ¶ 16.) Otsuka filed an initial and Amended Complaint in this District, alleging that Torrent’s proposed generic product “will, if approved and marketed,” infringe at least one claim of the '615 and '796 patents. (Am. Compl. at ¶¶ 22-23, 33-34.) On October 22, 2014, Torrent filed an Answer to Otsuka’s Amended Complaint and, as a relevant here, asserted Counterclaims for “Unlawful Monopolization in Violation of the Sherman Act: Sham Litigation” and for a “Declaratory Judgment of Unen-forceability of the '615 and '796 Patents for Patent Misuse.” (Countercl. at ¶¶ 34-62.) Torrent’s" }, { "docid": "2684424", "title": "", "text": "and rejects Otsuka’s position that Apotex’s antitrust Counterclaim should be dismissed for lack of antitrust standing. Therefore, the Court turns to Otsuka’s position that Noerr-Pennington immunity bars Apotex’s antitrust Counterclaim. 16. As stated by this Court in Torrent, Under the Noerr-Pennington doctrine, a patent owner’s initiation of patent infringement litigation receives presumptive immunity from attack under the antitrust laws. See generally Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); see also Rochester Drug Coop., Inc. [v. Braintree Labs.], 712 F.Supp.2d [308] at 316 [(D.Del.2010)] (considering Noerr-Pennington immunity in the patent infringement context). Parties who file “sham litigation” are, however, excepted from the benefit of immunity under Noerr-Pennington. Prof'l Real Estate Investors v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). An allegation of sham litigation consists of two elements: first, “the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits.” Id. (internal quotations and citations omitted). Second, “the baseless lawsuit [must] eonceal[] an attempt to interfere directly with the business relationships of a competitor,” rather than reflect a legitimate effort to obtain judicial review. Id. Torrent, 118 F.Supp.3d at 655-56, 2015 WL 3869677, at *7. 17. Here, Otsuka argues, as it did in Torrent, that Apotex has failed to plead sufficient facts to trigger the sham litigation exception to Otsuka’s presumptive Noerr-Pennington immunity. (See Otsuka’s Br. at 7-10; Otsuka’s Reply at 4-5.) Nevertheless, the Court finds Apotex’s allegations even more ample than those the Court deemed sufficient in Torrent, and rejects Otsuka’s argument that Apo-tex’s Counterclaim should be dismissed on immunity grounds. 18. Critically, Apotex alleges that, it provided Otsuka with the “detailed legal and factual bases” for its position on the non-infringement of Apotex’s ANDA product on November 12, 2014. (Countercl. at ¶ 89.) On December 23, 2014, Apotex then provided Otsuka with supporting documentation of in excess of 13,000 pages, together with the raw" }, { "docid": "6156981", "title": "", "text": "at *1 (D.Del. Oct. 9, 2014); see also Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 275 n. 1 (3d Cir.1999) (noting that, “protecting a competitor’s ability to compete” clearly rests within “the interest of competition”). Moreover, Torrent has specifically alleged that Otsuka’s pursuit of “objectively baseless and sham judicial proceedings” has adversely affected competition in the overall aripiprazole market by encumbering the path of generic entry and effectively extending Otsuka’s long-held monopoly. See Rochester Drug Coop., Inc. v. Braintree Labs., 712 F.Supp.2d 308, 316 (D.Del.2010) (finding similar allegations sufficient). Therefore, the Court rejects Otsuka’s position that Torrent has failed to plead a cognizable antitrust injury. Nor does the Court find that these alleged injuries constitute conjectural possibilities, rather than the real and immediate injury required for purposes of antitrust standing. See Broadcom Corp., 501 F.3d at 321. Indeed, even if Torrent “voluntarily” declined to mount any legal challenge to Otsuka’s aripiprazole monopoly until after the expiration of the '528 Patent in April 2015, the exclusivity associated with the '528 Patent has since passed, and therefore interposes no present barrier to Torrent’s entry into the aripiprazole market as Otsuka’s active competitor. Nor does the status of Torrent’s FDA approval render the alleged injury any less imminent, because the FDA’s own records reflect that Torrent obtained final FDA approval for its ANDA product on April 28, 2015. See Press Release, FDA, FDA approves first generic Abilify to treat mental illnesses (Apr. 28, 2015), available at, http://www.fda.gov/NewsEvents/ Newsroom/PressAnnouncements/ucm 444862.htm. As a result, the pendency of this litigation constitutes the only encumbrance to Torrent’s free ability to enter the aripiprazole market, rendering the alleged injuries both real and immediate. Moreover, even if Torrent’s Counterclaim relies, at least in part, upon some ultimate facts, such as that. Otsuka’s actions evince a “specific intent to restrain competition,” (id. at ¶45), Torrent need not “ ‘plead detailed evidentiary matter in order to survive a motion to dismiss.’ ” In re Niaspan Antitrust Litig., 42 F.Supp.3d at 756 (citations omitted). Rather, the inquiry for purposes of the pending motion to dismiss turns upon the plausibility of" }, { "docid": "6156969", "title": "", "text": "drug application (hereinafter, “ANDA”) is non-infringing on its face. (Id. at 3-7.) Finally, Torrent submits that dismissal of its Counterclaims would, at this early stage of discovery, be inappropriate to the extent undeveloped factual issues remain concerning whether Otsuka’s conduct constitutes patent misuse and/or an antitrust violation. (Id. at 8-9.) The principal issues before the Court are whether the allegations of Torrent’s Counterclaims suffice to confer antitrust standing, to overcome Otsuka’s Noerr-Pennington immunity, and to state a plausible claim for patent misuse. For the reasons that follow, Otsuka’s motion will be granted in part and denied in part. II. BACKGROUND A. Factual and Procedural Background Otsuka, a pharmaceutical company primarily organized and existing under the laws of Japan, holds New Drug Application (hereinafter, “NDA”) No. 21-436, approved by the Food and Drug Administration (hereinafter, the “FDA”), for aripipra-zole tablets, which Otsuka markets under the trade name Ability®. (Am. Compl. at ¶¶ 1,17-18, 25-30.) In connection with Ability's® listing in the Orange Book, the FDA’s book of drug products approved under the Food, Drug, and Cosmetic Act (hereinafter, the “Orange Book”), 21 U.S.C. § 355(j), Otsu-ka identifies the '615 patent and the '796 patent, both of which Otsuka owns by virtue of assignment. (Id. at 14, ¶¶ 17, 26, 29.) The listing, in particular, discloses Abilify®’s active ingredient as “aripipra-zole,” the dosage form as a “tablet” or “oral,” and the strengths as 2 mg, 5 mg, 10 mg, 15 mg, 20 mg, and 30 mg. (Counterclaim at ¶13 (quotation marks omitted).) In late 2013, Torrent filed ANDA No. 20-1519 with the FDA, seeking approval to market generic 2 mg, 5 mg, 10 mg, 15 mg, 20 mg, and 30 mg aripiprazole tablets in the United States, prior to the expiration of the '615 and the '796 patents. (See Countercl. at ¶ 14.) Torrent’s ANDA fíl-ing included a “paragraph IV certification” pursuant to 21 U.S.C. § 355(j)(2)(A)(vii)(IV), in which Torrent set forth its assertion that the Abilify® patents would not be infringed by the commercial manufacture, use, or sale of Torrent’s generic product. (See id.) On January 4, 2014, Torrent mailed notice" }, { "docid": "6156980", "title": "", "text": "Distilled to its essence. Torrent’s Counterclaim alleges that Otsuka has initiated meritless infringement actions in order'to “stifle and eliminate' competition and competitors,” to exclude or prevent competitors’ entry into the aripiprazole market, and to maintain its exclusive monopoly over the aripiprazole' market. (Countercl. at ¶¶ 34-58.) The Counter claim further alleges that, as result of Ot-suka’s purportedly “exclusionary, anticom-petitive and unlawful activities,” Otsuka has been able to maintain its aripiprazole monopoly to the detriment of competition and consumers and has, in particular, hampered Torrent’s ability to enter and compete, resulting in “lost profits and business opportunities.” (Id. at ¶¶ 54, 57-58.) In these respects, Torrent’s Counterclaim plausibly alleges the elements of an antitrust injury, namely, an injury of the type protected by the antitrust laws, and that the injury derived, at least in part, from anti-competitive acts. Indeed, the pursuit of litigation that forestalls entry into the generic market, as alleged here, constitutes “anti-competitive behavior” of the type the antitrust laws seek to prevent. AstraZeneca AB v. Glenmark Generics Ltd., No. 14-665, 2014 WL 5366050, at *1 (D.Del. Oct. 9, 2014); see also Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 275 n. 1 (3d Cir.1999) (noting that, “protecting a competitor’s ability to compete” clearly rests within “the interest of competition”). Moreover, Torrent has specifically alleged that Otsuka’s pursuit of “objectively baseless and sham judicial proceedings” has adversely affected competition in the overall aripiprazole market by encumbering the path of generic entry and effectively extending Otsuka’s long-held monopoly. See Rochester Drug Coop., Inc. v. Braintree Labs., 712 F.Supp.2d 308, 316 (D.Del.2010) (finding similar allegations sufficient). Therefore, the Court rejects Otsuka’s position that Torrent has failed to plead a cognizable antitrust injury. Nor does the Court find that these alleged injuries constitute conjectural possibilities, rather than the real and immediate injury required for purposes of antitrust standing. See Broadcom Corp., 501 F.3d at 321. Indeed, even if Torrent “voluntarily” declined to mount any legal challenge to Otsuka’s aripiprazole monopoly until after the expiration of the '528 Patent in April 2015, the exclusivity associated with the '528 Patent has since passed," }, { "docid": "2684417", "title": "", "text": "patent misuse counterclaim fails as a matter of law to state a cognizable claim for patent misuse. {See Otsuka’s Br. at 5-11; Otsuka’s Reply at 1-5.) In the alternative, Otsuka requests that the Court follow the “ ‘standard practice’ ” of bifurcating for trial the patent issues raised in this litigation from the antitrust and/or patent misuse issues. (Otsuka’s Br. at 12 (citations omitted); Ot-suka’s Reply at 6.) 8. Under Federal Rule of Civil Procedure 12(b)(6), the court must generally accept as true the factual allegations of the defendant’s counterclaims, and construe all “reasonable inferences” in the light most favorable to the defendant. Revell v. Port Auth. of N.Y., N.J., 598 F.3d 128, 134 (3d Cir.2010); see also Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir.2012) (same). However, “[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” fails to suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Rather, the “well-pled factual allegations” must be sufficient to demonstrate a plausible “entitlement to relief.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir.2008). 9. As stated above, Otsuka moves to dismiss Apotex’s antitrust Counterclaim for lack of standing and on immunity grounds, and moves to dismiss Apotex’s patent misuse Counterclaim for failure to state a plausible claim for relief. For substantially the reasons stated in Torrent, the Court will deny Otsuka’s motion to the extent it seeks the dismissal' of Apotex’s Counterclaims. Nevertheless, the Court will briefly address each issue in turn. 10. A party suing under federal antitrust laws, as here, must meet the prudential requirement of “ ‘antitrust standing.’ ” Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223, 232 (2d Cir.2013) (citation omitted). In Ethypharm S.A France, the Court of Appeals for the Third Circuit outlined a five-factor test, with the second, “antitrust injury,” constituting the essential precondition for" }, { "docid": "2684412", "title": "", "text": "MEMORANDUM OPINION SIMANDLE, Chief Judge: This patent infringement action, one of twenty-six related actions under the Hatch-Waxman Act, 35 U.S.C. §§ 271, 281, generally concerns Plaintiff Otsuka Pharmaceutical Co, Ltd.’s (hereinafter, “Otsuka”) position that Apotex Corp.’s and Apotex Inc.’s (collectively, “Apotex”) proposed generic aripiprazole product infringes one or more claims of four of the various patents covering Otsuka’s Ability aripiprazole product, U.S. Patent Nos. 8,017,615 (“the '615 patent”), 8,580,796 (“the '796 patent”), 8,642,760 (“the '760 patent”), and 8,759,350 (“the '350 patent” and collectively, the “Patents-in-Suit”). Otsuka now moves to dismiss Apotex’s Ninth and Tenth Counterclaims for “Unlawful Monopolization” and for “Patent Misuse” (hereinafter, the “Counterclaims”) pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, to bifurcate and stay Apotex’s Counterclaims pending resolution of the primary patent infringement issues pursuant to Federal Rule of Civil Procedure 42(b). [Docket Item 102.] The Court recently addressed the viability of substantively identical, but slightly less developed, counterclaims in Otsuka Pharmaceutical Co., Ltd. v. Torrent Pharm. Ltd., Inc., 118 F.Supp.3d 646, No. 14-1078, 2015 WL 3869677 (D.N.J. June 22, 2015), and reaches substantially the same result in connection with the pending motion. For the reasons that follow, Otsuka’s motion will be granted in part and denied in part. The Court finds as follows: 1.As this Court has summarized on numerous occasions, Otsuka holds New Drug Application (hereinafter, “NDA”) No. 21-436, approved by the Food and Drug Administration (hereinafter, the “FDA”), for aripiprazole tablets, which Otsuka markets under the trade name Ability®. (See Am. Compl. at ¶¶ 1, 18, 20.) In connection with Ability®’s listing in the Orange Book, the FDA’s book of drug products approved under the Food, Drug, and Cosmetic Act (hereinafter, the “Orange Book”), 21 U.S.C. § 355(j), Otsuka identifies the Patents-in-Suit, and discloses Ability®’s active ingredient as “aripiprazole,” the dosage form as a “tablet” or “oral,” and the strengths as 2 mg, 5 mg, 10 mg, 15 mg, 20 mg, and 30 mg. (Countercl. at ¶¶ 32-34.) 2. In late 2014, Apotex filed Abbreviated New Drug Application (hereinafter, “ANDA”) No. 78-583 with the FDA, seeking approval to market generic" }, { "docid": "6156979", "title": "", "text": "(3d Cir.2007) (“The prospec-five harm to competition must not ... be speculative.”) In seeking to dismiss’ Torrent’s federal antitrust claim, Otsuka asserts that Torrent cannot be heard to claim that the pendency of this litigation has caused Torrent to suffer any antitrust or anticompeti-tive injury, because Torrent “voluntarily chose[] not to surmount the legal and regulatory” hurdles to its market entry until after the April 2015 expiration of the primary compound patent for Abilify, U.S. Patent No. 5,006,528 (hereinafter, the “'528 Patent”), and because Torrent’s allegations of delayed market entry lack 'the immediacy required for purposes of antitrust standing. (Otsuka’s Br. at 5-7; Otsuka’s Reply at 2-4.) The Court, however, finds Otsuka’s position without merit. Critically, the. hallmark for evaluating the plausibility of an allegation of antitrust injury is, as stated above, that the actions alleged to be anticompetitive when viewed “as a whole” bear consequence for. the overall market, rather than only for. an individual competitor, TransWeb, LLC v. 3M Innovative Props. Co., No. 10-4413, 2011 WL 2181189, at *18 (D.N.J. June 1, 2011) Distilled to its essence. Torrent’s Counterclaim alleges that Otsuka has initiated meritless infringement actions in order'to “stifle and eliminate' competition and competitors,” to exclude or prevent competitors’ entry into the aripiprazole market, and to maintain its exclusive monopoly over the aripiprazole' market. (Countercl. at ¶¶ 34-58.) The Counter claim further alleges that, as result of Ot-suka’s purportedly “exclusionary, anticom-petitive and unlawful activities,” Otsuka has been able to maintain its aripiprazole monopoly to the detriment of competition and consumers and has, in particular, hampered Torrent’s ability to enter and compete, resulting in “lost profits and business opportunities.” (Id. at ¶¶ 54, 57-58.) In these respects, Torrent’s Counterclaim plausibly alleges the elements of an antitrust injury, namely, an injury of the type protected by the antitrust laws, and that the injury derived, at least in part, from anti-competitive acts. Indeed, the pursuit of litigation that forestalls entry into the generic market, as alleged here, constitutes “anti-competitive behavior” of the type the antitrust laws seek to prevent. AstraZeneca AB v. Glenmark Generics Ltd., No. 14-665, 2014 WL 5366050," }, { "docid": "6156967", "title": "", "text": "OPINION SIMANDLE, Chief Judge: I. INTRODUCTION This patent infringement action, one of twenty-five related actions under the Hatch-Waxman Act, 35 U.S.C. §§ 271, 281, generally concerns Plaintiff Otsuka Pharmaceutical Co., Ltd.’s (hereinafter, “Otsuka”) position that Torrent Pharmaceuticals Limited, Inc.’s, Torrent Pharma Inc.’s, and Hetéro Labs Limited’s (hereinafter, “Torrent”) proposed generic aripi-prazole product infringes one or more claims of two of the various patents covering Otsuka’s Ability® aripiprazole product, U.S. Patent Nos. 8,017,615 (“the '615 patent”) and 8,580,796 (“the '796 patent”). Otsuka now moves to .dismiss Torrent’s Fifth and Sixth Counterclaims for “Unlawful Monopolization” and for “Patent Misuse” (hereinafter, the “Counterclaims”) pursuant to Federal Rule of Civil Procedure 12(b)(6) and, in the alternative, to bifurcate and stay Torrent’s Counterclaims pending resolution of the primary patent infringement issues pursuant to Federal Rule of Civil Procedure 42(b). [Docket Item 43.] Otsuka argues, in particular, that Torrent’s antitrust Counterclaim must be dismissed, because Torrent has not alleged, nor will Torrent ever suffer, the “anticom-petitive injury” required for antitrust standing, and because Torrent’s “cursory conclusions” fail to plausibly overcome Ot-suka’s Noerr-Penmington immunity. (Ot-suka’s Reply at 2-5; Otsuka’s Br. at 5-11.) Ostuka similarly asserts that Torrent’s patent misuse Counterclaim must be dismissed, because its allegation of baseless infringement fails as a matter of law to state a cognizable claim for patent misuse. (See Otsuka’s Reply at 5-6; Otsuka’s Br. at 11-12.) In the alternative, Otsuka requests that the Court follow the “ ‘standard practice’ ” of bifurcating for trial the patent issues raised in this litigation from the antitrust and/or patent misuse issues. (Otsuka’s Br. at 13 (citations omitted).) Torrent, however, submits that its antitrust Counterclaim demonstrates the “real and immediate” risk of injury required for purposes of antitrust standing, because absent “this bad faith litigation,” Torrent would have an “unencumbered path to launch its ANDA product.” (Torrent’s Opp’n at 4-5.) With regard to Otsuka’s claim of Noerr-Penmington immunity, Torrent similarly asserts that its antitrust Counterclaim sets forth sufficient factual matter to demonstrate that this litigation constitutes a sham, because Otsuka initiated suit despite Torrent’s detailed non-infringement statement and despite the fact that Torrent’s abbreviated new" }, { "docid": "2684432", "title": "", "text": "here, the plaintiff has “filed a Drug Master File with the FDA and 'set forth other required information for FDA approval’ of its drug.” 707 F.3d at 236 n. 20 (quoting Chemi SpA v. GlaxoSmithKline, 356 F.Supp.2d 495, 497 (E.D.Pa.2005)). . As in Torrent, the Court again notes that Otsuka has initiated litigation against every ANDA filer. See Torrent, 118 F.Supp.3d at 654 n. 6, 2015 WL 3869677, at *5 n. 6 (noting Otsuka’s filings as a matter of public record). Indeed, following Torrent, Otsuka filed its twenty-sixth related infringement action against an ANDA filer. See Otsuka Pharm. Co., Ltd. v. Macleods Pharms. Ltd., Civil Action No. 15-5109 (JBS/KMW) (filed July 2, 2015). . Moreover, the existence of antitrust injury \"involves complex questions of fact,” ill-suited for resolution upon a motion to dismiss. Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir.1997) (citing Brader v. Allegheny Gen. Hosp., 64 F.3d 869, 876 (3d Cir.1995) (collecting cases)); see also In re Niaspan Antitrust Litig., 42 F.Supp.3d at 757 n. 19 (collecting cases that have declined to resolve the existence of antitrust injury through motions to dismiss). As a result, even if Apotex’s allegations proved sparse, which they do not, resolving the issue of antitrust injury exceeds the scope of this limited Rule 12(b)(6) motion. . The Court rejects Otsuka's arguments concerning Apotex’s Paragraph IV certification under 21 U.S.C. § 355(j)(2)(A)(vii), Celgene Corp. v. KV Pharm. Co., No. 07-4819, 2008 WL 2856469 (D.N.J. July 22, 2008), and AstraZeneca AB v. Mylan Labs., Inc., 2010 WL 2079722, at *4 (S.D.N.Y. May 19, 2010) for the reasons set forth in Torrent, 118 F.Supp.3d at 656 n. 10, 2015 WL 3869677, at *7 n. 10. . Moreover, even if Apotex ultimately overcomes Noerr-Pennington immunity, Apotex ■must still establish a substantive antitrust violation in order to succeed on its Counterclaim. See Organon Inc. v. Mylan Pharm., Inc., 293 F.Supp.2d 453, 461 (D.N.J.2003) (citation omitted). Finally, if the counterclaim allegation of \"sham” litigation is itself without reasonable basis, Otsuka may invoke the constraints on baseless pleadings provided by Rule 11," }, { "docid": "6156968", "title": "", "text": "Noerr-Penmington immunity. (Ot-suka’s Reply at 2-5; Otsuka’s Br. at 5-11.) Ostuka similarly asserts that Torrent’s patent misuse Counterclaim must be dismissed, because its allegation of baseless infringement fails as a matter of law to state a cognizable claim for patent misuse. (See Otsuka’s Reply at 5-6; Otsuka’s Br. at 11-12.) In the alternative, Otsuka requests that the Court follow the “ ‘standard practice’ ” of bifurcating for trial the patent issues raised in this litigation from the antitrust and/or patent misuse issues. (Otsuka’s Br. at 13 (citations omitted).) Torrent, however, submits that its antitrust Counterclaim demonstrates the “real and immediate” risk of injury required for purposes of antitrust standing, because absent “this bad faith litigation,” Torrent would have an “unencumbered path to launch its ANDA product.” (Torrent’s Opp’n at 4-5.) With regard to Otsuka’s claim of Noerr-Penmington immunity, Torrent similarly asserts that its antitrust Counterclaim sets forth sufficient factual matter to demonstrate that this litigation constitutes a sham, because Otsuka initiated suit despite Torrent’s detailed non-infringement statement and despite the fact that Torrent’s abbreviated new drug application (hereinafter, “ANDA”) is non-infringing on its face. (Id. at 3-7.) Finally, Torrent submits that dismissal of its Counterclaims would, at this early stage of discovery, be inappropriate to the extent undeveloped factual issues remain concerning whether Otsuka’s conduct constitutes patent misuse and/or an antitrust violation. (Id. at 8-9.) The principal issues before the Court are whether the allegations of Torrent’s Counterclaims suffice to confer antitrust standing, to overcome Otsuka’s Noerr-Pennington immunity, and to state a plausible claim for patent misuse. For the reasons that follow, Otsuka’s motion will be granted in part and denied in part. II. BACKGROUND A. Factual and Procedural Background Otsuka, a pharmaceutical company primarily organized and existing under the laws of Japan, holds New Drug Application (hereinafter, “NDA”) No. 21-436, approved by the Food and Drug Administration (hereinafter, the “FDA”), for aripipra-zole tablets, which Otsuka markets under the trade name Ability®. (Am. Compl. at ¶¶ 1,17-18, 25-30.) In connection with Ability's® listing in the Orange Book, the FDA’s book of drug products approved under the Food, Drug, and Cosmetic" } ]

[ { "docid": "7313965", "title": "", "text": "Cir.), aff'd in part, rev’d in part, 718 F,2d 1317 (5th Cir.1983) (en banc). . Sandstrom v. Montana, 442 U.S. 510, 522, 99 S.Ct. 2450, 2458, 61 L.Ed.2d 39 (1979), quoting Morissette v. United States, 342 U.S. 246, 274, 72 S.Ct. 240, 255, 96 L.Ed. 288 (1952). See Francis v. Franklin, — U.S.-,-, 105 S.Ct. 1965, 1968, 85 L.Ed.2d 344 (1985). Accord United States v. Canales, 744 F.2d 413, 434 (5th Cir. 1984); United States v. Fricke, 684 F.2d 1126, 1128-29 (5th Cir.1982), cert. denied, 460 U.S. 1011, 103 S.Ct. 1250, 75 L.Ed.2d 480 (1983). . Cf. United States v. Pereira-Pineda, 721 F.2d 137, 140 (5th Cir.1983); United States v. Zayas-Morales, 685 F.2d 1272, 1277 (11th Cir.1982) (construing § 1324(a)(1)). . 8 C.F.R. § 208(l)(a). . Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 243, 2 L.Ed.2d 228 (1958). Accord United States v. Jones, 642 F.2d 909, 914 (5th Cir.1981). . Fed.R.Evid. 804(a)(2) provides: (a) Definition of Unavailability. \"Unavailability as a witness” includes situations in which the declarant— (2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so. . See United States v. Fredericks, 586 F.2d 470, 481 (5th Cir.1978). Accord United States v. Chiavola, 744 F.2d 1271, 1273 (7th Cir.1984); United States ex rel. Cunningham v. DeRobertis, 719 F.2d 892, 895-96 (7th Cir.1983); LaFrance v. Bohlinger, 499 F.2d 29, 35 (1st Cir.), cert. denied, 419 U.S. 1080, 95 S.Ct. 669, 42 L.Ed.2d 674 (1974); Bradford v. Johnson, 354 F.Supp. 1331, 1336-37 (E.D.Mich.1972), aff’d per curiam, 476 F.2d 66 (6th Cir. 1973). . 586 F.2d 470 (5th Cir.1978). . Id. at 480-81. . United States v. Chiavola, 744 F.2d 1271, 1273 (7th Cir.1984). ALVIN B. RUBIN, Circuit Judge, concurring in the result, and dissenting in part from the opinion. Although I concur in the result, I disagree with the view of the majority concerning the “knowledge instruction,” Part HID of the opinion. The aphorism that imputes knowledge of the law to all is not applicable if a mistaken belief concerning how the law would treat a" } ]

[ { "docid": "13884932", "title": "", "text": "together. The Louisiana Supreme Court on direct appeal determined that the testimony was hearsay under state law, but that its admission was not unduly prejudicial. Johnson urges a review of the Louisiana court’s ruling. A writ of habeas corpus may be granted under § 2254 only if the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The writ may not be used to remedy violations of state rights. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); United States ex rel. Hoover v. Franzen, 669 F.2d 433, 436 (7th Cir.1982); Cronnon v. Alabama, 587 F.2d 246, 250 (5th Cir.), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 792 (1979). As a general rule, admissibility of evidence is a matter of state law, and only a contention that the admission of the evidence rendered the trial fundamentally unfair or violated a specific constitutional right will be considered in a federal collateral proceeding. Meyer v. Estelle, 621 F.2d 769, 771 (5th Cir.1980). As to whether admission of the testimony rendered his trial fundamentally unfair, “[a]n unfair trial has been characterized as one that has been ‘largely robbed of dignity due a rational process.' ” Menzies v. Procunier, 743 F.2d 281, 288 (5th Cir.1984) (quoting Houston v. Estelle, 569 F.2d 372, 383 (5th Cir.1978)). Even assuming that the admission of Thomas’ and Bolden’s testimony was erroneous, “the mere erroneous admission of prejudicial testimony does not, in itself, justify federal habeas relief unless it is ‘material in the sense of a crucial, critical, highly significant factor,’ in the context of the entire trial.” Menzies, 743 F.2d at 288 (quoting Porter v. Estelle, 709 F.2d 944, 957 (5th Cir.1983)). A review of the record demonstrates that this testimony was in no sense crucial to the prosecution. Practically identical testimony concerning Estella’s plan to return to her husband was introduced through direct testimony and cross-examination of the husband, Jimmy Johnson, Sr. Therefore, the evidence was merely cumulative in nature, so that it was not “crucial.”" }, { "docid": "320867", "title": "", "text": "matter of constitutional law. In reviewing the disposition of this claim by the district court, we note that “[i]n order for an evidentiary ruling to be cognizable in habeas corpus, it' must deprive the state court defendant of fundamental fairness.” Jameson v. Wainwright, 719 F.2d 1125, 1126 (11th Cir.1983), cert, denied, — U.S.-, 104 S.Ct. 2355, 80 L.Ed.2d 827 (1984); see also Hills v. Henderson, 529 F.2d 397 (1976). A denial of fundamental fairness occurs when the evidence is “material in the sense of a crucial, critical, highly significant factor.” Id. at 1127. Under this test, the admission of the evidence did not violate the Constitution, although its admissibility under state law presents a close and difficult question. See 365 So.2d at 708 (three Justices dissenting). IV. TESTIMONY OF PATRICIA JOHNSON At Smith’s trial, the state introduced the testimony of Patricia Johnson, Wesley Johnson’s wife. (Wesley Johnson was the prosecutor’s essential witness. See supra § I.) The prosecutor called Patricia Johnson to testify concerning prior consistent statements made by her husband in response to Smith’s impeachment. The witness list submitted to Smith before trial by the prosecutor did not include Patricia Johnson’s name, as Florida law requires. In addition, the record shows that Patricia Johnson was present during a portion of the trial that preceded her testimony and was thus in violation of the sequestration rule. Smith argues that the omission of Patricia Johnson’s name from the witness list and the sequestration rule violation compels the issuance of the writ. Smith, however, cites no authority to the effect that these violations are of constitutional dimension. See, e.g., Bronstein v. Wainwright, 646 F.2d 1048 (5th Cir.1981) (state law violations do not usually warrant habeas relief). Assuming that the claim is simply one rooted in the concept of “fundamental fairness,” see Donnelly v. DeChris-toforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), we conclude that these violations (if they were violations) did not render Smith’s trial fundamentally unfair. V. TESTIMONY OF DR. NISWONGER Dr. Joseph K. Niswonger, a psychiatrist, examined Smith before trial. Niswonger testified that, during the examination, Smith" }, { "docid": "3165182", "title": "", "text": "house. The government’s case at trial rested principally on testimony from victim Shah, co-conspirator Eckhardt, and Detective Carroll, including his testimony regarding the contents of the telephone conversation. The defendant asserted as an alibi defense that he was with family and friends the entire day of June 17. The jury convicted the defendant on both counts after a four-day trial and the court sentenced him to concurrent terms of three years imprisonment on each count. The defendant argues that the evidence obtained from the telephone call between Sleyano and the defendant which Detective Carroll overheard should have been suppressed because it was obtained in violation of Sleyano’s rights. Generally, individuals not personally the victims of illegal government activity cannot assert the constitutional rights of others. United States ex rel. Cunningham v. DeRobertis, 719 F.2d 892, 895-96 (7th Cir.1983). The defendant nonetheless argues that the violation of Sleyano’s rights rose to the level of a violation of the defendant’s fifth amendment rights. Alternatively, the defendant urges us to exercise our supervisory power to suppress the evidence, which the police allegedly obtained by beating Sleyano. The defendant correctly states that a violation of another person’s fifth amendment rights may rise to the level of a violation of his rights to a fair trial. See Cunningham, 719 F.2d at 896; Bradford v. Johnson, 354 F.Supp. 1331 (E.D.Mich.1972), aff'd, 476 F.2d 66 (6th Cir.1973). Due process is implicated when the government seeks a conviction through use of evidence obtained by extreme coercion or torture. The issue is whether the government’s investigation methods resulted in a fundamentally unfair trial. We believe that the defendant here received a fair trial. The defendant’s claims that his trial was fundamentally unfair because alleged police misconduct forced Sleyano to participate in the telephone conversation fails under the circumstances in this case. Unlike the situations presented in Cunningham, LaFrance v. Bohlinger, 499 F.2d 29 (1st Cir.), cert. denied, 419 U.S. 1080, 95 S.Ct. 669, 42 L.Ed.2d 674 (1974), and Bradford, the alleged misconduct here did not directly produce the evidence to which the defendant objects. The defendant complains that introduction" }, { "docid": "16928143", "title": "", "text": "process argument is premised on infractions of both of these rules. It is well settled that “mere violation of evidentiary rules by the state trial court does not in itself invoke habeas corpus relief....” Anderson v. Maggio, 555 F.2d 447, 451 (5th Cir. 1977); Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.), cert. denied, Hills v. Maggio, 429 U.S. 850, 97 S.Ct. 139, 50 L.Ed.2d 124 (1976) (“ ‘the admissibility.. . of the evidence under state law is not determinative of a federally protected right’ cognizable on habeas corpus”). See Bronstein v. Wainwright, 646 F.2d 1048, 1050 (5th Cir. 1981) (“A state’s interpretation of its own laws or rules is no basis for federal habeas corpus relief since no constitutional question is involved”). The states exercise supervision of the trial of state created crimes, and federal courts are compelled to defer to a state court’s interpretation of its own criminal laws, rules of evidence and rules of criminal procedure. See Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Bronstein v. Wainwright, 646 F.2d 1048 (5th Cir. 1981). Thus, an error in a state trial does not justify habeas relief unless it is of such a magnitude as to render the trial fundamentally unfair, and, to that end, violative of due process. Bronstein v. Wainwright, 646 F.2d at 1050; Anderson v. Maggio, 555 F.2d 447 (5th Cir. 1977). Although the determination of fundamental fairness is “necessarily imprecise,” Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), this court has held that erroneous admission of prejudicial evidence can lead to federal habeas corpus relief if it is “ ‘material in the sense of a crucial, critical, highly significant factor.’ ” Hills v. Henderson, 529 F.2d at 401, quoting Corpus v. Beto, 469 F.2d 953 (5th Cir. 1972), cert. denied, 414 U.S. 932, 94 S.Ct. 236, 38 L.Ed.2d 162 (1973). Panzavecchia asserts that the denial of the severance motion resulted in the admission of evidence of a prior conviction which was irrelevant to the murder charge and so prejudicial that it impaired his" }, { "docid": "18760089", "title": "", "text": "trial was denied. Georgia v. Dobbs, No. 8403 (Walker Sup.Ct., Aug. 13, 1979). The Georgia Supreme Court affirmed, and the United States Supreme Court denied certiorari. Dobbs v. State, 245 Ga. 208, 264 S.E.2d 18, cert. denied, 446 U.S. 913, 100 S.Ct. 1845,64 L.Ed.2d 267 (1980). ISSUES The following issues are presented to us on appeal: (1) whether the following improprieties and evidentiary errors, individually and cumulatively, rendered Dobbs’ trial fundamentally unfair under the Fourteenth Amendment: (a) prosecutor’s improper closing argument at the guilt/innocence phase of the trial; (b) admission of evidence of another crime attributed to Dobbs; (c) introduction of testimony by prosecution which was known to be false and prejudicial; and (d) introduction of incriminating hearsay; (2) whether the pre-trial identifications of Dobbs by two key witnesses were so suggestive as to unconstitutionally taint those witnesses’ in-court identifications of Dobbs; (3) whether the trial court’s jury instruction unconstitutionally shifted the burden of proof to Dobbs as to the element of intent; (4) whether the trial court’s instruction as to the meaning of “assault” was improper and unconstitutional; (5) whether the grand and traverse jury pools from which the jurors in Dobbs’ case were selected were unconstitutionally composed; (6) whether the process of “death qualifying” the jury under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), created a jury which was conviction-prone and not fairly representative of the community; (7) whether a potential juror was improperly removed on Witherspoon grounds; (8) whether the court’s instructions regarding mitigating circumstances were constitutionally deficient; (9) whether Dobbs’ attorney provided ineffective assistance during the sentencing phase; and (10) whether the failure to transcribe counsels’ closing arguments during the sentencing phase was unconstitutional. Each of these issues will be discussed in turn below. I. WAS DOBBS’ TRIAL FUNDAMENTALLY UNFAIR? Improper prosecutorial argument and evidentiary errors are grounds for granting a writ of habeas corpus only when the trial is rendered fundamentally unfair. Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1973); Shaw v. Boney, 695 F.2d 528 (11th Cir.1983). We evaluate the following arguments pursuant" }, { "docid": "10099164", "title": "", "text": "trial fundamentally unfair in violation of the due process clause of the Fourteenth Amendment. E.g., Corn v. Zant, 708 F.2d 549, 557 (11th Cir.1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2670, 81 L.Ed.2d 375 (1984) (judge’s reference to right of automatic appeal did not render trial fundamentally unfair); McCorquodale v. Balkcom, 705 F.2d 1553, 1556 (11th Cir.1983), rev'd on reh’g en banc on other grounds, 721 F.2d 1493 (1983), cert. denied, 466 U.S. 954, 104 S.Ct. 2161, 80 L.Ed.2d 546 (1984) (prosecutor's remark regarding appellate review did not render trial fundamentally unfair). The fact Adams may have had a basis for raising a due process claim by analogy to these decisions at the time of his first habeas petition, however, does not indicate that his failure to raise the Eighth Amendment claim he now raises was the result of intentional abandonment or inexcusable neglect. It is clear that not every claim that implicates the fundamental fairness standards embodied in the due process clause necessarily implicates the Eighth Amendment as well. Indeed, although both Com and McCorquodale were capital cases, neither gives any indication that the Eighth Amendment is implicated by statements regarding appellate review. Both assume that the proper analysis of such a claim is under the fundamental fairness standard of the due process clause as enunciated in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). The distinction between claims that implicate the fundamental fairness standards embodied in the due process clause and those that implicate the Eighth Amendment has been recognized from the inception of the Supreme Court’s modern Eighth Amendment jurisprudence. The year before the Supreme Court held in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), that Georgia’s death penalty statute violated the Eighth Amendment, the Court rejected the contention that discretion in imposing the death penalty violated the fundamental fairness standards embodied in the due process clause of the Fourteenth Amendment. McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). See Lockett v. Ohio, 438 U.S. 586, 599, 98 S.Ct. 2954," }, { "docid": "11795907", "title": "", "text": "to require the recusal of Judge Vela on religious grounds. Id. at 1199 (affidavits based on mere conclusions, opinions, or rumors are legally insufficient to require recusal). See also Davis v. Comm’r, 734 F.2d 1302, 1303 (8th Cir.1984). IV. COERCED TESTIMONY The appellants timely moved to dismiss the indictment based on government coercion and misconduct. On appeal, the appellants contend that their fifth amendment right to due process was violated when the district court failed to hold an evidentiary hearing on the voluntariness of the testimony of the alien witnesses. It is established in this Circuit that “the admission at trial of a coerced out-of-court statement from a non-defendant may violate the defendant’s right to a fair trial as guaranteed by the due process clause of the fifth amendment.” Merkt, 764 F.2d at 274. See also United States v. Chiavola, 744 F.2d 1271, 1273 (7th Cir.1984); LaFrance v. Bohlinger, 499 F.2d 29, 35 (1st Cir.), cert. denied, 419 U.S. 1080, 95 S.Ct. 669, 42 L.Ed.2d 674 (1974). The voluntariness of the statement of a witness is generally determined in a pretrial suppression hearing. See, e.g., Merkt, 764 F.2d at 273; LaFrance, 499 F.2d at 36. Here, however, defense counsel indicated that he wished to carry the motion with the case, and testimony was presented at trial regarding the voluntariness of the statements of MendezValle and Rosales-Cruz. The appellants first assert that Mendez-Valle’s testimony was coerced with promises that he and the children would be sent to Washington, D.C., if he testified favorably to the government. At the outset of his testimony, Mendez-Valle stated that he wanted to request a “condition” from the government. At that point, the jury was excused and the proceedings continued. Mendez-Valle stated that, when he was detained, the government promised him that the children would be reunited with their parents in Washington, D.C. The government denied making any such promise but acknowledged that, when Mendez-Valle had asked what would happen to the children, he had been told that the children would be held until their parents could be located. At the time of trial, the children" }, { "docid": "8112272", "title": "", "text": "1545 (11th Cir.), cert. denied, 470 U.S. 1059, 105 S.Ct. 1775, 84 L.Ed.2d 834 (1985). 2. Standard of Review This court set out the standard for constitutional claims of prosecutorial misconduct in closing argument in Brooks v. Kemp, 762 F.2d 1383, 1399-1403 (11th Cir.1985) (en banc), vacated on other grounds, 478 U.S. 1016, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986), reinstated, 809 F.2d 700 (11th Cir.) (en banc), cert. denied, 483 U.S. 1010, 107 S.Ct. 3240, 97 L.Ed.2d 744 (1987). We relied on the Supreme Court case Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974), which held that a prosecutor’s argument violates the Constitution if it renders the defendant’s trial “so fundamentally unfair as to deny him . due process.” Improper argument by a prosecutor reaches this threshold of fundamental unfairness if it is “so egregious as to create a reasonable probability that the outcome was changed.” Id. at 1403. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Thus, the defendant must show a reasonable probability that, but for the prosecutor’s statements, the result of the proceeding would have been different. Brooks, 762 F.2d at 1401-02. We review Davis’s prosecutorial misconduct claim under the Brooks standard, including the misstatements that preceded closing argument. In a constitutional claim based on prosecutorial argument we generally do not analyze whether a particular comment or action is unconstitutional, unless the conduct violates an expressly enumerated right. See Donnelly v. DeChristoforo, 416 U.S. at 643, 94 S.Ct. at 1871; Brooks, 762 F.2d at 1400. Instead, we determine whether a remark or a series of remarks, in the context of that trial, rendered the entire trial unfair. Id. Therefore, the essence of such a claim is that the prosecutor’s conduct as a whole violated the Fourteenth Amendment due process right to a fair trial. Different factors have been utilized by various courts in order to decide whether or not the cumulative errors at trial could be said to have," }, { "docid": "19364998", "title": "", "text": "apply the due process balance to determine if that relevance was outweighed by the prejudicial impact of the statement.” We do not believe that the district court exceeded the scope of its authority in a habeas corpus proceeding. Clearly, at the heart of petitioner’s complaint is a challenge to a state court evidentiary ruling. Yet this court, along with other federal courts of appeals, has recognized that the erroneous admission of evidence that is relevant, but excessively inflammatory, might rise to the level of a constitutional violation. See, e.g., United States ex rel. Mertz v. New Jersey, 423 F.2d 537, 539-40 (3d Cir.1970); Dudley v. Duckworth, 854 F.2d 967, 972 (7th Cir.1988), cert. denied — U.S. -, 109 S.Ct. 1655, 104 L.Ed.2d 169 (1989); Walker v. Engle, 703 F.2d 959, 968 (6th Cir.), cert. denied sub nom. Marshall v. Walker, 464 U.S. 951, 104 S.Ct. 367, 78 L.Ed.2d 327 (1983); Osbourne v. Wainwright, 720 F.2d 1237, 1239 (11th Cir.1983) (per curiam); Panzavecchia v. Wainwright, 658 F.2d 337, 341-42 (5th Cir.1981). Accordingly, a reviewing court must examine the relative probative and prejudicial value of evidence to determine whether its admission violated defendant’s right to a fair trial. In this case, the district court explained that it was reviewing for constitutional error, not errors in state law, and thus examined the testimony’s probative worth to assess the constitutional implications of the state court’s ruling. See 689 F.Supp. at 513. We point out, however, that just as “[n]ot every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a ‘failure to observe that fundamental fairness essential to the very concept of justice,’ ” United States ex rel. Perry v. Mulligan, 544 F.2d 674 (3d Cir.1976) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977), not every error in bal ancing probative value against prejudicial effect “amount[s] to error which rises to constitutional dimensions.” See United States ex rel. Mertz v. New Jersey, 423 F.2d at 539-40. In Bisaccia v." }, { "docid": "21842458", "title": "", "text": "is not a “statement” within the meaning of Florida’s discovery rules, the fact remains that, as a federal court sitting in habeas review, we are bound by such an interpretation. Bronstein, 646 F.2d at 1050. Nevertheless, “when faced with a claim of fundamental unfairness as a federal constitutional issue ... it is necessary ... to consider and determine the issue presented as a federal constitutional issue and not a state evidentiary issue.” Osborne v. Wainwright, 720 F.2d 1237, 1238-39 (11th Cir.1983) (per curiam); see Boykins v. Wainwright, 737 F.2d 1539, 1544 (11th Cir.1984). Such a review is narrow. It is limited to determining whether Ma-chin’s trial was so unfair as to involve a violation of due process. E.g., Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Osborne, supra. In instances the admission of prejudicial evidence may support habeas relief if the evidence “is material in the sense of a crucial, critical, highly significant factor.” Osborne, 720 F.2d at 1238-39 (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. Unit B 1982); Dickson v. Wainwright, 683 F.2d 348, 350 (11th Cir.1982). Reduced to its essence, the issue in this case is whether the admission of the word “silencio” was fundamentally unfair in view of its late or “surprise” disclosure. The district court, in ruling that Machin’s trial was unfair, stated that Machin had relied on the prosecutor’s response to his discovery request that there were no written statements made by Machin. In addition, the court noted that Officer Davis, in a deposition taken prior to trial, testified that Machin had not made any statements. Because defense counsel relied on these responses and assumed there were no such statements, the district court stated that the defense had no “opportunity to challenge the statement by pre-trial motion and to construct a defense based on all of the material facts.” We disagree. While we do not fully condone the prosecutor’s actions here, we do not believe that the “surprise” disclosure rendered Machin’s trial fundamentally unfair" }, { "docid": "5536534", "title": "", "text": "despite its potential for prejudice. See Gomez v. Ahitow, 29 F.3d 1128, 1139 (7th Cir.1994). Defense counsel in this case challenged Melody Hurst’s credibility in opening statements (and on cross-examination). Accordingly, the trial court properly determined that the threat evidence was relevant to her credibility and was admissible. Further, given that the alleged threats were not attributed to Petitioner, it cannot be said that he was so prejudiced by such testimony that his trial was rendered fundamentally unfair on such a basis. See Pierson, 121 F.3d at 563. Habeas relief is not warranted on this claim. D. Bind-over Claim Petitioner also contends that he is entitled to habeas relief because there was insufficient evidence to bind him over for trial. The United States Supreme Court has held that the federal Constitution does not require that a probable cause hearing be conducted prior to a criminal trial. See Gerstein v. Pugh, 420 U.S. 103, 119, 125 n. 26, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Accordingly, the bind-over decision constitutes a state-law issue which does not implicate a federal constitutional right and is not subject to review in a habeas proceeding. See Schacks v. Tessmer, No. 00-1062, 2001 WL 523533, *6 (6th Cir. May 8, 2001) (unpublished) (refusing to review state court determination that second-degree murder conviction rendered bind-over sufficiency of the evidence challenge moot). Habeas relief is not warranted on this claim. E. Prosecutorial Misconduct/Admission of Alias Testimony Petitioner next asserts that he is entitled to habeas relief because the prosecutor erred by introducing evidence that Petitioner used an alias while living in Florida after fleeing Michigan. The United States Supreme Court has stated that prosecutors must “refrain from improper methods calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). To prevail on a claim of prosecutorial misconduct, a habeas petitioner must demonstrate that the prosecutor’s remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)." }, { "docid": "3165183", "title": "", "text": "which the police allegedly obtained by beating Sleyano. The defendant correctly states that a violation of another person’s fifth amendment rights may rise to the level of a violation of his rights to a fair trial. See Cunningham, 719 F.2d at 896; Bradford v. Johnson, 354 F.Supp. 1331 (E.D.Mich.1972), aff'd, 476 F.2d 66 (6th Cir.1973). Due process is implicated when the government seeks a conviction through use of evidence obtained by extreme coercion or torture. The issue is whether the government’s investigation methods resulted in a fundamentally unfair trial. We believe that the defendant here received a fair trial. The defendant’s claims that his trial was fundamentally unfair because alleged police misconduct forced Sleyano to participate in the telephone conversation fails under the circumstances in this case. Unlike the situations presented in Cunningham, LaFrance v. Bohlinger, 499 F.2d 29 (1st Cir.), cert. denied, 419 U.S. 1080, 95 S.Ct. 669, 42 L.Ed.2d 674 (1974), and Bradford, the alleged misconduct here did not directly produce the evidence to which the defendant objects. The defendant complains that introduction of the substance of his telephone conversation was unfair because police coerced Sleyano into placing the call. But the police discovered the business card with the name “Tony” and the defendant’s telephone number hand-printed on it in the normal course of their investigation. That evidence was not the product of misconduct. The defendant cannot claim that police discovered him solely as a result of mistreatment of Sleyano. He also cannot claim that his incriminating statements were the direct fruit of coercion. All the defendant can argue is that Sleyano may have dialed the telephone and spoken into it against his will. This is fundamentally different from a claim that extreme police misconduct toward a suspect led to a confession or a statement implicating, and leading to the conviction of, an accomplice. In Bradford, for example, police brutally abused a suspect until he named his accomplice. The abuse continued, and the suspect testified against his accomplice at trial in state court under the threat of further beatings. The accomplice was convicted. A federal district court granted" }, { "docid": "19364999", "title": "", "text": "examine the relative probative and prejudicial value of evidence to determine whether its admission violated defendant’s right to a fair trial. In this case, the district court explained that it was reviewing for constitutional error, not errors in state law, and thus examined the testimony’s probative worth to assess the constitutional implications of the state court’s ruling. See 689 F.Supp. at 513. We point out, however, that just as “[n]ot every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a ‘failure to observe that fundamental fairness essential to the very concept of justice,’ ” United States ex rel. Perry v. Mulligan, 544 F.2d 674 (3d Cir.1976) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977), not every error in bal ancing probative value against prejudicial effect “amount[s] to error which rises to constitutional dimensions.” See United States ex rel. Mertz v. New Jersey, 423 F.2d at 539-40. In Bisaccia v. Attorney Gen. of New Jersey, 623 F.2d 307 (3d Cir.), cert. denied 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980), we identified at what point such an error in balancing might be cognizable in a habeas proceeding: When it must be said that the probative value of such evidence, though relevant, is greatly outweighed by the prejudice to the accused from its admission, then use of such evidence by a state may rise to the posture of fundamental fairness and due process of law. 623 F.2d at 313 (quoting United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1223 (7th Cir.1974)). Accord Osbourne v. Wainwright, 720 F.2d 1237, 1239 (11th Cir.1983) (per curiam) (error in balancing must be of “such magnitude” as to deny fundamental fairness); United States ex rel. Palmer v. DeRobertis, 738 F.2d 168, 171 (7th Cir.) (when probative value of evidence is “greatly outweighed” by the prejudice to the accused, then use of such evidence may “rise to the posture of the denial of fundamental due process”); Thompson v." }, { "docid": "19703915", "title": "", "text": "claims will result in a fundamental miscarriage of justice. In this case, the New Mexico Supreme Court’s dismissal ■ of Hoxsie’s first two grounds rested on an “independent and adequate” state procedural rule. See Klein v. Neal 45 F.3d 1395, 1400 (10th Cir.1995). Further, Hoxsie has failed to demonstrate either cause and prejudice for his procedural default or that failure to consider his claims will result in a fundamental miscarriage of justice. Therefore, Hoxsie may not obtain review of his first two grounds in this proceeding. In his third ground, Hoxsie contends that the prosecution introduced numerous prejudicial photographs of the victim, rendering Hoxsie’s trial fundamentally unfair. We review Hoxsie’s claim of prosecutorial misconduct under the standard set forth in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). See Robison v. Maynard, 829 F.2d 1501, 1509 (10th Cir. 1987). In Donnelly, the Court held that prosecutorial misconduct in a state court violates a defendant’s right to a fair trial only if the prosecutor’s actions “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643, 94 S.Ct. at 1871. Viewing Hoxsie’s contention in light of this standard, we cannot conclude that the admission of the photographs denied Hoxsie a fair trial. As the district court concluded, the photographs were relevant and-were admissible for the purpose of clarifying and illustrating testimony. Thus, the introduction of the photographs did not so infect Hoxsie’s trial as to deny his right to due process. In his fourth ground, Hoxsie contends that the prosecution acted improperly by permitting Suiter’s mother to testify at trial and to remain in the courtroom throughout the trial. Hoxsie argues that her testimony and presence in the courtroom was designed to have an impermissible emotional impact on the jury and thereby bias the jury’s evaluation of the evidence. As above, we review claims of this type by determining whether the prosecutor’s actions “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643," }, { "docid": "7411802", "title": "", "text": "whether the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair. Floyd v. Meachum, 907 F.2d 347, 353 (2nd Cir.1990). See Also: Kontakis v. Beyer, 19 F.3d 110, 120 (3d Cir.1994); Keller v. Larkins, 89 F.Supp.2d 593, 604 (E.D.Pa.2000), aff'd 251 F.3d 408 (3d Cir.2001). Similarly, in some circumstances, the admission of evidence in a state criminal proceeding can rise to the level of a constitutional error. In such cases, the petitioner must show that the “use of the evidence” caused “fundamental unfairness” in violation of due process. Kontakis, supra., citing Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941). See Also: Bisaccia v. Attorney General, 623 F.2d 307, 312 (3d Cir.1980), cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980); Keller v. Larkins, 89 F.Supp.2d at 604. However, just as “not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a failure to observe that fundamental fairness essential to the very concept of justice, not every error in balancing probative value against prejudicial effect amounts to error which rises to constitutional dimensions.” Lesko v. Owens, 881 F.2d 44, 51 (3d Cir.1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990) quoting United States ex rel. Perry v. Mulligan, 544 F.2d 674 (3d Cir.1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977) and Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431(1974). To constitute the requisite denial of fundamental fairness sufficient to issue a writ of habeas corpus, the erroneously admitted evidence must be “material in the sense of a crucial, critical, highly significant factor,” and the probative value of the evidence must be so conspicuously outweighed by its inflammatory content that a defendant’s constitutional right to a fair trial has been violated. Lesko v. Owens, 881 F.2d at 52; Robinson v. Vaughn, 1995 WL 572177 at *3 (E.D.Pa.1995), quoting Jameson v. Wainwright, 719 F.2d 1125, 1127 (11th Cir.1983), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107" }, { "docid": "11795906", "title": "", "text": "personal bias against Merkt. Elder’s affidavit asserts prejudice on the basis of Judge Vela’s prior recusal. We have already rejected this ground. Additional allegations center on the statements made by Judge Vela during the previous trial and sentencing of Merkt. Again, these prior judicial rulings do not show any personal bias. Finally, the appellants assert that Judge Vela should have recused himself because of religious pressure. In support of this contention, Merkt refers to the affidavit of Diane Elder, the wife of John Elder. Diane Elder’s affidavit violates the one-affidavit rule of 28 U.S.C. § 144 and need not be considered. See United States v. Balistrieri, 779 F.2d 1191, 1200 & n. 6 (7th Cir.1985) (a court need only consider the first affadavit submitted in support of a § 144 motion), cert. denied, — U.S. —, 106 S.Ct. 1490, 89 L.Ed.2d 892 (1986). Even if its filing were appropriate, Diane Elder’s affidavit, based, as it is, on information told to her by unnamed individuals who did “not feel capable of giving affidavits,” is legally insufficient to require the recusal of Judge Vela on religious grounds. Id. at 1199 (affidavits based on mere conclusions, opinions, or rumors are legally insufficient to require recusal). See also Davis v. Comm’r, 734 F.2d 1302, 1303 (8th Cir.1984). IV. COERCED TESTIMONY The appellants timely moved to dismiss the indictment based on government coercion and misconduct. On appeal, the appellants contend that their fifth amendment right to due process was violated when the district court failed to hold an evidentiary hearing on the voluntariness of the testimony of the alien witnesses. It is established in this Circuit that “the admission at trial of a coerced out-of-court statement from a non-defendant may violate the defendant’s right to a fair trial as guaranteed by the due process clause of the fifth amendment.” Merkt, 764 F.2d at 274. See also United States v. Chiavola, 744 F.2d 1271, 1273 (7th Cir.1984); LaFrance v. Bohlinger, 499 F.2d 29, 35 (1st Cir.), cert. denied, 419 U.S. 1080, 95 S.Ct. 669, 42 L.Ed.2d 674 (1974). The voluntariness of the statement of a witness" }, { "docid": "213437", "title": "", "text": "80 S.Ct. 274, 4 L.Ed.2d 242 (1960); United States v. Bernett, 495 F.2d 943, 952, 161 U.S.App.D.C. 363, 372 (1974). Cf. Schaefer, Federalism and State Criminal Procedure, 70 Harv.L. Rev. 1, 26 (1956) (“The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its criminal law.”) . The Supreme Court’s decision in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), does not undercut these fundamental principles. Harris established that a Miranda violation, without more, does not preclude introduction of an admission of guilt by the accused for purposes of impeaching her testimony at trial. The Court was careful to emphasize that “[p]etitioner makes no claim that the statements made to the police were coerced or involuntary.” Id. at 224, 91 S.Ct. at 645. Harris thus does not govern a case where it appears that any statements made by the accused may have been induced by promises of leniency. Every circuit court to have addressed the question has found that Harris has nothing to say about the admissibility of involuntary confessions, and has held that such confessions are not admissible for purposes of impeachment. LaFrance v. Bohlinger, 499 F.2d 29 (1st Cir.), cert. denied, 419 U.S. 1080, 95 S.Ct. 669, 42 L.Ed.2d 674 (1974); Iverson v. North Dakota, 480 F.2d 414 (8th Cir.), cert. denied, 414 U.S. 1044, 94 S.Ct. 549, 38 L.Ed.2d 335 (1973); Alesi v. Craven, 440 F.2d 975, 978 (9th Cir.), cert. denied, 404 U.S. 856, 92 S.Ct. 103, 30 L.Ed.2d 97 (1971); United States v. Salinas, 439 F.2d 376 (5th Cir. 1971). See also Oregon v. Hass, 420 U.S. 714, 722, 95 S.Ct. 1215, 1221, 43 L.Ed.2d 570 (1975) (statements by accused admissible for impeachment purposes because, as in Harris, Miranda principles were violated; but “[tjhere is no evidence or suggestion that Hass’ statements . . . were involuntary or coerced”). . A strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to utilize every" }, { "docid": "7020791", "title": "", "text": "to the verdict. F. Prosecutorial Misconduct As he did before the district court, Mr. Williams also argues that pervasive misconduct by the prosecution rendered his sentencing proceeding unfair. In evaluating a claim of prosecutorial misconduct as a violation of the petitioner’s due process right to a fair trial, the inquiry is whether the prosecutor’s statements “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)); see also United States v. Torres, 809 F.2d 429, 435 (7th Cir.1987). We examine the trial in its entirety to determine whether the prosecutor’s comments violated due process. See Shepard v. Lane, 818 F.2d 615, 621 (7th Cir.), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987); United States ex rel. Crist v. Lane, 745 F.2d 476, 482 (7th Cir.1984), cert. denied, 471 U.S. 1068, 105 S.Ct. 2146, 85 L.Ed.2d 503 (1985). “[T]he well-settled standard of review [is] that we are to consider the prosecutor’s conduct not in isolation, but in the context of the trial as a whole, to determine if such conduct was ‘so inflammatory and prejudicial to the defendant ... as to deprive him of a fair trial.’ ” United States v. Chaimson, 760 F.2d 798, 809 (7th Cir.1985) (quoting United States v. Zylstra, 713 F.2d 1332, 1339 (7th Cir.), cert. denied, 464 U.S. 965, 104 S.Ct. 403, 78 L.Ed.2d 344 (1983)). As the district court correctly noted, however, the stakes of a capital sentencing hearing require us to give heightened scrutiny to the prosecutor’s conduct. Mr. Williams argues that the prosecution ignored court rulings when it told the jury that Mr. Williams should be sentenced to death in order to send a message to the entire community that such behavior will not be tolerated. He contends that this argument highlighted that he had not presented any psychiatric testimony, and made several references to Mr. Williams’ possible release from" }, { "docid": "22317986", "title": "", "text": "violation on this issue. C.Illegal Sentence Mr. Cummings claims that his convictions were unlawfully enhanced because the State did not indicate at the preliminary hearing that it would be charging him AFCF and because the State failed to prove his prior conviction. To the contrary, the record reveals that the trial court admitted evidence of Mr. Cummings’ prior conviction at the preliminary hearing and sentencing phase. We will not grant habeas relief on state court evidentiary rulings unless they rendered the “ ‘trial so fundamentally unfair as to constitute a denial of federal constitutional rights.’ ” Duvall v. Reynolds, 139 F.3d 768, 789 (10th Cir.1998) (quoting Hopkinson v. Shillinger, 866 F.2d 1185, 1197 (10th Cir.1989)), cert. denied, — U.S. —, 119 S.Ct. 345, — L.Ed.2d-(1998). We find that petitioner was not deprived of any federal constitutional rights in the proof and admission of evidence regarding his prior conviction. Thus, petitioner’s illegal sentence claim has no merit. D.Prosecutorial Misconduct At one point during the trial, the prosecutor told the jury that petitioner had served only three months of his prior three-year sentence. Mr. Cummings claims this statement constituted prosecutorial misconduct that was so prejudicial that it deprived him of a fair trial. We disagree. Habeas relief is available for prosecutorial misconduct only when the misconduct is so egregious that it renders the entire trial fundamentally unfair. See Donnelly v. DeChristoforo, 416 U.S. 637, 642-48, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); Jackson v. Shanks, 143 F.3d 1313, 1322 (10th Cir.1998). In making this determination, we consider “the totality of the circumstances, evaluating the prosecutor’s conduct in the context of the whole trial.” Jackson, 143 F.3d at 1322. This court has previously elaborated on what this inquiry entails: To view the prosecutor’s statements in context, we look first at the strength of the evidence against the defendant and decide whether the prosecutor’s statements plausibly could have tipped the scales in favor of the prosecution. We also ascertain whether curative instructions by the trial judge, if given, might have mitigated the effect on the jury of the improper statements. When a prosecutor responds" }, { "docid": "213438", "title": "", "text": "has nothing to say about the admissibility of involuntary confessions, and has held that such confessions are not admissible for purposes of impeachment. LaFrance v. Bohlinger, 499 F.2d 29 (1st Cir.), cert. denied, 419 U.S. 1080, 95 S.Ct. 669, 42 L.Ed.2d 674 (1974); Iverson v. North Dakota, 480 F.2d 414 (8th Cir.), cert. denied, 414 U.S. 1044, 94 S.Ct. 549, 38 L.Ed.2d 335 (1973); Alesi v. Craven, 440 F.2d 975, 978 (9th Cir.), cert. denied, 404 U.S. 856, 92 S.Ct. 103, 30 L.Ed.2d 97 (1971); United States v. Salinas, 439 F.2d 376 (5th Cir. 1971). See also Oregon v. Hass, 420 U.S. 714, 722, 95 S.Ct. 1215, 1221, 43 L.Ed.2d 570 (1975) (statements by accused admissible for impeachment purposes because, as in Harris, Miranda principles were violated; but “[tjhere is no evidence or suggestion that Hass’ statements . . . were involuntary or coerced”). . A strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial. Any trial conducted in derogation of that model leaves open the possibility that the trial reached an unfair result precisely because all the protections specified in the Constitution were not provided. Schneckloth v. Bustamonte, 412 U.S. 218, 241, 93 S.Ct. 2041, 2055, 36 L.Ed.2d 854 (1973). . E. g., McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1969). See Fed.R.Crim.P. 11(c) & (d). . Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). . McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Defense counsel is aided in this task by the modern discovery rules, which, upon request, permit a defendant to inspect and copy any “relevant written or" } ]

[ { "docid": "22570195", "title": "", "text": "argues that Robinson does not apply because the plan in that case was established pursuant to a collective bargaining agreement whereas the plan involved in this case was created unilaterally by the employer. We find the logic of Robinson persuasive in either context; “[B]ecause finite contributions must be allocated among potential beneficiaries, inevitably financial and actuarial considerations sometimes will provide the only justification for an eligibility condition that discriminates between different classes of potential applicants for benefits.” United Mine Workers of America Health and Retirement Funds v. Robinson, 455 U.S. 562, 575, 102 S.Ct. 1226, 1234, 71 L.Ed.2d 419 (1982). Accordingly, an employer is free to choose which benefits to include in a retirement program so long as the stringent requirements of ERISA are met and no other law or policy is violated. In contrast, once a plan is established and is governed by the requirements of ERISA, courts may review a decision by trustees to deny benefits. Rhoton v. Central States, Southeast and Southwest Areas Pension Fund, 717 F.2d 988 (6th Cir.1983); Van Gunten v. Central States, Southeast and Southwest Areas Pension Fund, 672 F.2d 586 (6th Cir.1982). Such review, however, is limited to a determination of whether the trustees’ actions in administering or interpreting a plan’s provisions are arbitrary and capricious. Courts may review the trustees’ administration of a pension plan because Congress has imposed a fiduciary duty upon trustees to administer such plans for the sole and exclusive benefit of the beneficiaries. 29 U.S.C. Sec. 1104. See H.Rep. No. 93-533, 93rd Cong., 2d Sess. (1974), reprinted in [1974] U.S.Code Cong, and Ad.News, 4639, 4649. Courts, however, have not been authorized by Congress to impose upon employers the court’s subjective beliefs concerning the relative value of benefits which employers have chosen voluntarily to confer upon employees. In summary, judicial interference into the establishment of pension plan provisions is unwarranted. Such interference would serve only to discourage employers from creating voluntarily pension plans. Although Congress sought to establish minimum standards for pension plans to assure that employees would not be denied benefits arbitrarily, it recognized that if standards were" } ]

[ { "docid": "3223813", "title": "", "text": "Profit-Sharing Plan and the stock bonus plan under Section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). They also seek damages from U.S. News, the director-defendants and American Appraisal charging breaches of fiduciary duties under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3). Two of these issues have already been resolved against the plaintiffs. It has been determined that the stock bonus plan is not included within ERISA coverage, supra at 44-46. It has also been determined that while American Appraisal may be found liable under § 502(a)(3) as a non-fiduciary, supra at 53-55, that defendant is certainly not a fiduciary within the meaning of the Act. In their pending motion for partial summary judgment, plaintiffs present two issues. The first concerns whether plaintiffs received less than the true value of their interests in the Profit-Sharing Plan. In this regard, plaintiffs claim that the U.S. News stock held by the Plan was grossly undervalued through the use of four challenged valuation methodologies: (1) the use of a minority-interest valuation; (2) the application of a marketability discount; (3) an improper reliance upon comparisons with “similar” companies to determine the value of the U.S. News stock; and (4) flawed and superficial consideration of U.S. News’ real estate holdings. The second issue concerns plaintiffs’ allegation that U.S. News, the director-defendants and American Appraisal breached fiduciary duties imposed by ERISA in conducting and approving the challenged appraisals. Applicable Standard of Review It is primarily the deferential standard of review afforded by ERISA to the decisions of plan trustees that makes it impossible to grant plaintiffs’ motion in any part. The standard that seems most appropriate to apply to decisions involving the calculation of benefits would leave untouched any such decision that is not arbitrary or capricious. See District 17, Dist. 29, Local Union 7113 v. Allied Corp., 765 F.2d 412, 416-17 (4th Cir.1985); Short v. United Mine Workers of America 1950 Pension Trust, 728 F.2d 528, 533 (D.C.Cir.1984). Yet the review of a benefits determination may require application of a “stern hand and flinty eye,” Maggard v. O’Connell, 671 F.2d 568, 572 (D.C.Cir.1982), where circumstances indicate that the" }, { "docid": "13605207", "title": "", "text": "Workers of America v. Royal Coal Company (Royal Coal I), 768 F.2d 588 (4th Cir.1985), it was determined that the coal company’s responsibility to provide health benefits to retired employees under a negotiated Wage Agreement terminated with the expiration of that Wage Agreement. Although this decision was based on the National Bituminous Coal Wage Agreements of 1978 and 1981, those agreements are substantially similar to the 1984 Wage Agreement at issue herein. In Royal Coal I, as in the instant case, the company ceased mining operations during the term of the wage agreement in effect at the time. The company did not enter into a subsequent wage agreement to provide health benefits to retired employees. Id. at 589. The retired employees sued the coal company and the 1974 Benefit Trust to force one of the two defendants to continue to provide the health benefits. In deciding Royal Coal I, the Fourth Circuit looked to the intent of the parties when they entered into the contract to determine whether they intended the employer’s obligations to continue beyond the expiration of the collective bargaining agreement. Id. at 590. The court, after carefully examining the language of the Wage Agreements and relevant case law, held that the company’s \"obligation to provide health benefits ... to its retired ... coal miners under the 1978 and 1981 Wage Agreements does not extend beyond the expiration of those Agreements.” Id. at 592; see also District 17, Dist. 29, Local Union 7113, and Local Union 6023, United Mine Workers of America v. Allied Corp., 765 F.2d 412 (4th Cir.), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985). In 1987, building on Royal Coal I, the Fourth Circuit again confronted the issue of the continued provision of retiree health benefits. In District 29, United Mine Workers of America v. United Mine Workers of America 1974 Benefit Plan & Trust (Royal Coal II), 826 F.2d 280 (4th Cir.1987), cert. denied, 485 U.S. 935, 108 S.Ct. 1111, 99 L.Ed.2d 272 (1988), the court held that the 1974 Benefit Trust was required to provide retiree health benefits" }, { "docid": "5062214", "title": "", "text": "yardstick with which to measure the propriety of all benefit determinations made by employee benefit plans. The case law suggests that a determination which results in the withholding of benefits allegedly due must, at the very least, satisfy the arbitrary and capricious standard of review. See, e.g., id. at 570-71. Although a stricter standard might conceivably apply in certain situations, these decisions articulate a minimum standard which governs a Plan’s benefit determinations under section 1132(a)(1)(B). Third, as the defendants correctly assert, benefit determinations cannot be arbitrary and capricious as a matter of law if those decisions contain no element of discretion. For instance, a court may not invalidate as arbitrary and capricious a denial of benefits based solely on eligibility requirements which were established by a collective bargaining agreement. United Mine Workers of America Health & Retirement Funds v. Robinson, 455 U.S. 562, 573-74, 102 S.Ct. 1226, 1232-33, 71 L.Ed.2d 419 (1982). Moreover, an employer’s strict compliance with the substantive terms of an employee benefit plan cannot be termed arbitrary and capricious, unless the provision itself violates federal law. Moore v. Reynolds Metals Co. Retirement Program for Salaried Employees, 740 F.2d 454, 456 (6th Cir.1984), cert. denied, — U.S. ---, 105 S.Ct. 786, 83 L.Ed.2d 780 (1985). See Hoffa v. Fitzsimmons, 673 F.2d 1345, 1353 (D.C.Cir.1982) (nonERISA decision holding that finality clause in benefit plan precludes discretion to deny benefits). In sum, these eases stand for the general proposition that an administrator who strictly adheres to the lawful terms of an employee benefit plan may not be found to have acted arbitrarily and capriciously. In light of these observations, the Court does not hesitate to conclude that the plaintiffs’ claim for unpaid benefits against the Plan satisfies the first factor in the equitable calculus: likelihood of success on the merits. On the basis of the current record, and as the Court has already noted, the plaintiffs have made a colorable claim that the undervaluation of U.S. News’ real estate holdings, coupled with the questionable practice of discounting the plaintiffs’ interests in the Plan for their lack of marketability, resulted in" }, { "docid": "23237347", "title": "", "text": "685, 687 (3d Cir.1992) (discussing Thomas v. United Mine Workers 1974 Benefit Plan & Trust, No. 8902371, 1990 WL 471855 (W.D.Pa. Oct. 31, 1990)). The Third Circuit affirmed the district court without opinion. Thomas v. United Mine Workers 1974 Benefit Plan & Trust, 935 F.2d 1282 (3d Cir.1991). However, the Third Circuit has since repudiated Thomas and indicated that Thomas has “no precedential significance.” Moats, 981 F.2d at 690. . Although Firestone appears to have explicitly adopted the abuse of discretion standard, 489 U.S. at 115, 109 S.Ct. at 957 (quoting abuse of discretion standard from Restatement (Second) of Trusts § 187, Comment d (1959)), to replace the then-prevailing arbitrary and capricious standard, De Nobel v. Vitro Corp., 885 F.2d 1180, 1186 (4th Cir.1989) (“[a]s we read [Firestone], the Supreme Court has mandated the total abandonment of the 'arbitrary and capricious’ formulation”), other courts have continued to apply the arbitrary and capricious standard, see, e.g., Arfsten v. Frontier Airlines, Inc. Retirement Plan for Pilots, 967 F.2d 438, 440 (10th Cir.1992). We have previously recognized that ”[i]t is unclear whether the 'abuse of discretion’ standard adopted in [Firestone ] is synonymous with the 'arbitrary and capricious’ standard previously used by the Fourth Circuit and most other courts.\" Richards v. United Mine Workers Health & Retirement Fund, 895 F.2d 133, 135 (4th Cir.1990); see also District 17, District 29, Local Union 7113 v. Allied Corp., 765 F.2d 412, 416-17 (4th Cir.) (en banc) (applying pre-Firestone arbitrary and capricious standard of review), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985). Because our disposition would be the same under either standard, we need not resolve the differences, if any, between the two standards. . Given that the Trustees have the authority to formulate the rules and regulations that implement the Plan, see 1974 Pension Plan Article VIII.B(l), it is not subject to question that the Trustees Have the same discretion to interpret these rules and regulations as they have to interpret the Plan itself. See, e.g., Gordon v. ILWU-PMA Benefit Funds, 616 F.2d 433, 439 (9th Cir.1980) (applying arbitrary and" }, { "docid": "16715105", "title": "", "text": "eligibility only under Title II. It is now well established that federal courts may not review for reasonableness substantive provisions of a pension plan. E.g., United Mineworkers of America Health & Retirement Funds v. Robinson, 455 U.S. 562, 574, 102 S.Ct. 1226, 1233, 71 L.Ed.2d 419 (1982); Moore v. Reynolds Metals Company Retirement Program for Salaried Employees, 740 F.2d 454, 456 (6th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 786, 83 L.Ed.2d 780 (1985). Accordingly, we decline to review Article IIC to determine whether it is reasonable. Norman contends also that the denial of benefits was arbitrary and capricious. He argues that the Funds’ policy, as expressed in a letter from the Funds’ associate counsel, is that even if an applicant has been denied Title II benefits for lack of insured status the Trustees could still award benefits if a participant was considered disabled under Title XVI. Norman asserts that since he was awarded benefits under Title XVI, the Funds’ policy requires that he receive benefits under Article IIC. While a court may not review a pension plan provision for reasonableness, it “may review the administration of a pension fund to determine whether the provisions are applied in an arbitrary or capricious manner.” Moore v. Reynolds Metals Company Retirement Program for Salaried Employees, 740 F.2d 454, 456 n. 4 (6th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 786, 83 L.Ed.2d 780 (1985) (emphasis in original). We disagree with Norman’s assertion that the Trustees denied him benefits arbitrarily. Even assuming that the assistant counsel’s letter represents a policy of the Funds, the Trustees were justified in concluding that Norman was not disabled as the result of a mining accident. The record reflects that Norman did not seek treatment for his alleged injuries until approximately ten months after the accident. Further, Norman was thereafter twice denied disability benefits under Title II because medical evidence did not establish that he was disabled. Moreover, although the available medical records are in conflict, substantial medical evidence supports the determination that Norman was not totally disabled by reason of the mining accident. Accordingly, we conclude that" }, { "docid": "2024552", "title": "", "text": "Plan. Accordingly, the Trustees denied Short’s pension application by letter dated February 6,1980, for failure to establish credit either for 20 years of classified service, including eight years of signatory service after May 28, 1946, or for ten years of signatory service, including at least three years of signatory service after December 31, 1970, as required by Article II.B of the Plan. On August 4, 1982, Short brought suit in the District Court. Jurisdiction was based on sections 301(c) and 302(e) of the Labor Management Relations Act of 1947, 29 U.S.C. §§ 185(c), 186(e) (1976); section 502(f) of ERISA, 29 U.S.C. § 1132(f) (1976); 28 U.S.C. § 1331 (Supp. V 1981); and 28 U.S.C. § 1332 (1976). Short alleged that “[t]he plaintiff’s application for retirement benefits was denied because he failed to satisfy the eligibility criteria adopted after he became disabled, as set forth in the 1950 Pension Plan. The defendants have refused to evaluate the plaintiff’s eligibility for retirement based upon Resolution 63 which was in effect at the time of his forced retirement.” Complaint ¶ 9. Short argued that “[t]he defendant’s denial of the plaintiff’s application for full retirement benefits based upon regulations adopted subsequent to his retirement is arbitrary and capricious, a violation of the fiduciary duties of the Trustees, and is in breach of the plaintiff’s contractual rights to retirement benefits.” Id. 110. Both parties moved for summary judgment. On January 28, 1983, the District Court granted summary judgment for Short and ordered the Trustees to enroll Short as a pensioner in the 1950 Pension Trust with all related health benefits pursuant to the 1950 Benefit Plan and Trust, effective the date of Short’s pension application, January 25, 1980. II. Analysis A. Prior to the Supreme Court’s decision in United Mine Workers of America Health & Retirement Funds v. Robinson, 455 U.S. 562, 102 S.Ct. 1226, 71 L.Ed.2d 419 (1982), case law in this Circuit dealing with the 1950 Fund established the authority of federal courts to review the reasonableness both of the eligibility requirements adopted by the Trustees and of the Trustees’ application of those" }, { "docid": "9805238", "title": "", "text": "Plan, and be eligible for immediate commencement of a monthly pension. Appellants argued below that they qualified for UMP benefits because at some future date they would have retired from active service. Laid-off employees, however, do not qualify for retirement under the UMP; only employees in active service on the day before their retirement can qualify. Appellants do not satisfy this condition. Likewise, appellants fail to qualify for the medical benefits included in the special plant closure benefits negotiated prior to the San Leandro plant closure. Those benefits require an hourly employee to have ten years of credited service and to be fifty years old on the date of his permanent layoff. None of appellants meet these requirements. Under ERISA, absent an express conflict with federal law, courts cannot review the terms of a collectively bargained medical plan. United Mine Workers Health & Retirement Funds v. Robinson, 455 U.S. 562, 102 S.Ct. 1226, 71 L.Ed.2d 419 (1982); White v. Distributors Ass’n Warehousemen’s Pension Trust, 751 F.2d 1068, 1070-72 (9th Cir.1985). The eligibility requirements in both of Caterpillar’s plans arose from negotiations between Caterpillar and appellants’ union. Appellants have not shown that these terms violate any federal law. Appellants argument that they are entitled to medical benefits under the MMP similarly fails. By its plain terms, the MMP only covers retired employees who were full-time salaried employees on the day immediately preceding their retirement. Appellants fail to meet this Management Plan eligibility requirement. Appellants also fail to qualify for the MMP because they were not immediately entitled to the commencement of a pension under the Management Plan. Finally, appellants allege that Caterpillar breached its fiduciary duties by adopting eligibility rules that are arbitrary and capricious. Appellants claim that the medical plan rules deprive them of benefits and therefore are “structurally defective” in violation of section 404 of ERISA. Section 404 requires that trustees with discretion in establishing benefit conditions act solely within the interests of participants and beneficiaries. 29 U.S.C. § 1104(a)(1) (1988). Appellants argue that because their termination was involuntary, they could not have met the medical coverage requirement that" }, { "docid": "23237348", "title": "", "text": "”[i]t is unclear whether the 'abuse of discretion’ standard adopted in [Firestone ] is synonymous with the 'arbitrary and capricious’ standard previously used by the Fourth Circuit and most other courts.\" Richards v. United Mine Workers Health & Retirement Fund, 895 F.2d 133, 135 (4th Cir.1990); see also District 17, District 29, Local Union 7113 v. Allied Corp., 765 F.2d 412, 416-17 (4th Cir.) (en banc) (applying pre-Firestone arbitrary and capricious standard of review), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985). Because our disposition would be the same under either standard, we need not resolve the differences, if any, between the two standards. . Given that the Trustees have the authority to formulate the rules and regulations that implement the Plan, see 1974 Pension Plan Article VIII.B(l), it is not subject to question that the Trustees Have the same discretion to interpret these rules and regulations as they have to interpret the Plan itself. See, e.g., Gordon v. ILWU-PMA Benefit Funds, 616 F.2d 433, 439 (9th Cir.1980) (applying arbitrary and capricious standard of review to trustees' interpretation of rules adopted by trustees under plan); Miniard v. Lewis, 387 F.2d 864, 865 (D.C.Cir.1967) (per curiam) (same), cert. denied, 393 U.S. 873, 89 S.Ct. 166, 21 L.Ed.2d 144 (1968). . Q & A 252 also details several circumstances in which a miner will be considered to have been disabled as a result of a mine accident, including circumstances where \"a miner strikes himself with his own tool,\" where \"a miner slips and falls,\" where \"a miner inhales a poisonous gas,\" and even where \"a miner bumps his head on a solid object.” (J.A. at 203.) . In reaching its decision, the Trustees specifically relied on the principles set forth in Q & As 252 and 288. (J.A. at 187.) . The district court also identified as a similarity between the two cases the fact that neither individual’s employer used a time clock. All this demonstrates is that the Trustees could not use either employee's \"clocking in” as evidence that he was at work, but instead had to" }, { "docid": "16458543", "title": "", "text": "■ lifetime benefit depends upon the intent of the parties to the collective bargaining agreement. International Union, United Auto Workers v. Yard-Man Inc., 716 F.2d 1476 (6th Cir.1983), cert. denied 465 U.S. 1007, 104 S.Ct. 1002, 79 L.Ed.2d 234 (1984); Bower v. Bunker Hill Co., 725 F.2d 1221 (9th Cir.1984); Local Union No. 150A, UFCW v. Dubuque Packing Co., 756 F.2d 66 (8th Cir.1985). If benefits are vested, they may not be altered without the consent of the retirees. UMWA Health and Retirement Funds v. Robinson, 455 U.S. 562, 102 S.Ct. 1226, 71 L.Ed.2d 419 (1982); Allied Chemical and Alkali Workers v. Pittsburgh Plate Glass, 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971). (40) The language of the plan benefits contained in the past five collective bargaining agreements between the UMWA and the BCOA, providing that a pensioner “will be entitled to retain a health services card for life,” together with the 25-year history of lifetime benefits pri- or to 1974, and the testimony of the parties of record establish that the parties intended to provide health benefits to the individual plaintiffs for life. We find that the language confers a right to benefits for the lifetime of the pensioner. See also District 29, UMWA v. Royal Coal Company, 826 F.2d at 282-283; Crockett v. Vecellio & Grogan, supra, slip op. at 4, Grubbs v. UMWA 1974 Benefit Plan, 723 F.Supp. 123 (W.D.Ark.1989). Similar language was interpreted to create a vested right to lifetime benefits in Policy v. Powell Pressed Steel Co., 770 F.2d 609 (6th Cir.1985). The argument of the BCOA and the 1974 Benefit Plan that the language is irrelevant is unpersuasive, particularly in view of the fact that it was expressly retained in the 1978 agreement when the BCOA sought its removal. (41) Although the intent to provide lifetime benefits to retirees is unambiguous, the collective bargaining agreements and the plan documents are ambiguous concerning whether the employer or the 1974 Benefit Plan is obligated to provide such benefits when the employer is no longer a signatory to the collective bargaining agreement. (42) There is" }, { "docid": "10463889", "title": "", "text": "established by any pertinent collective bargaining agreement. See United Mine Workers of America Health & Retirement Funds v. Robinson, 455 U.S. 562, 574-76, 102 S.Ct. 1226, 1233-34, 71 L.Ed.2d 419 (1982) (“There is no general requirement that the complex schedule of the various employee benefits withstand judicial review on an undefined standard of reasonableness”); Vorpahl v. Retirement Plan for Employees of Union Oil Company of California, 749 F.2d 1266, 1270 (8th Cir.1984). ERISA contains few provisions regulating the terms of benefit plans. It “imposes upon pension plans a variety of substantive requirements relating to participation, funding, and vesting. It also establishes various uniform procedural standards concerning reporting, disclosure, and fiduciary responsibility for both pension and welfare plans. It does not regulate the substantive content of welfare-benefit plans. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 732, 105 S.Ct. 2380, 2385, 85 L.Ed.2d 728 (1985) (citations omitted). Plaintiffs have not alleged that the terms or administration of the ESOPs are inconsistent with any standards established in ERISA. Nor have plaintiffs alleged that the terms or administration are inconsistent with any other federal law or with Republic’s collective bargaining agreements with IAM, ALEA, or AASA. Therefore, based upon the reasoning and holdings of Robinson and Vorpahl, plaintiffs’ cause of action under § 1132 concerning the ESOPs’ participation requirements must be dismissed. II. Breach of Fiduciary Duties Plaintiffs allege defendants have breached the fiduciary duties imposed by 29 U.S. C. § 1104 by establishing requirements for participation in the ESOPs that were not for the exclusive benefit of the participants and by failing to notify plaintiffs that accepting promotions could adversely affect their eligibility to participate in an ESOP. A. Requirements Are Not for Participants’ Exclusive Benefit Liability under § 1104 can only be predicated on a finding of a breach of fiduciary duty. Before the Court can determine whether a fiduciary violated any duties, the Court must determine whether the individual was acting as a fiduciary, within the meaning of ERISA, while engaging in the disputed conduct. In United Independent Flight Officers, Inc. v. United Airlines, Inc., 756 F.2d 1274 (7th" }, { "docid": "11049889", "title": "", "text": "relief pursuant to 29 U.S.C. § 1132(a)(1)(B). The discussion in the text assumes that determination. . See Jestings v. New England Tel. and Tel. Co., 757 F.2d 8 (1st Cir.1985); Miles v. New York State Teamsters Conference Pension and Retirement Fund Employee Benefit Plan, 698 F.2d 593 (2d Cir.1983), cert. denied, 464 U.S. 829, 104 S.Ct. 105, 78 L.Ed.2d 108 (1983); Edwards v. Wilkes-Barre Publishing Co. Pension Trust, 757 F.2d 52 (3d Cir.1985); LeFebre v. Westinghouse Electric Corp., 747 F.2d 197 (4th Cir.1984); Offutt v. Prudential Ins. Co., 735 F.2d 948 (5th Cir.1984); Moore v. Reynolds Metals Co. Retirement Program, 740 F.2d 454 (6th Cir.1984), cert. denied, 469 U.S. 1109, 105 S.Ct. 786, 83 L.Ed.2d 780 (1985); Sly v. P.R. Mallory & Co., 712 F.2d 1209 (7th Cir.1983); In re Vorpahl, 695 F.2d 318 (8th Cir.1982); Elser v. I.A.M. Nat'l Pension Fund, 684 F.2d 648 (9th Cir.1982), cert. denied, 464 U.S. 813, 104 S.Ct. 67, 78 L.Ed.2d 82 (1983); Peckham v. Board of Trustees, 653 F.2d 424 (10th Cir.1981); Sharron v. Amalgamated Ins. Agency Services, 704 F.2d 562 (11th Cir.1983); and Stewart v. National Shopmen Pension Fund, 730 F.2d 1552 (D.C.Cir.), cert. denied, 469 U.S. 834, 105 S.Ct. 127, 83 L.Ed.2d 68 (1984). . Although the proposition cited is articulated in terms of the action of a plan administrator, the context makes clear that it is the action of the party charged with interpreting the Plan that is significant. Thus, the rule is no less valid in the present case because Metropolitan’s action, rather than the action of the plan administrator (GE) is under scrutiny. . The language of the summary plan description is binding, even though not technically a part of the contract. See Bachelder v. Communications Satellite Corp., 657 F.Supp. 423 (D.Me. 1987). . Plaintiff Stuart’s Deposition, Exhibit 1-E, at 32 (\"[t]he monthly LTD [long-term disability] benefit is reduced by monthly income from ... Primary Social Security”); Appendix to Plaintiff Danis’ Motion for Summary Judgment, Exhibit 1-G (\"You receive 50% of your monthly pay from the LTD Plan in combination with other disability benefits subject to a minimum" }, { "docid": "13605208", "title": "", "text": "beyond the expiration of the collective bargaining agreement. Id. at 590. The court, after carefully examining the language of the Wage Agreements and relevant case law, held that the company’s \"obligation to provide health benefits ... to its retired ... coal miners under the 1978 and 1981 Wage Agreements does not extend beyond the expiration of those Agreements.” Id. at 592; see also District 17, Dist. 29, Local Union 7113, and Local Union 6023, United Mine Workers of America v. Allied Corp., 765 F.2d 412 (4th Cir.), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985). In 1987, building on Royal Coal I, the Fourth Circuit again confronted the issue of the continued provision of retiree health benefits. In District 29, United Mine Workers of America v. United Mine Workers of America 1974 Benefit Plan & Trust (Royal Coal II), 826 F.2d 280 (4th Cir.1987), cert. denied, 485 U.S. 935, 108 S.Ct. 1111, 99 L.Ed.2d 272 (1988), the court held that the 1974 Benefit Trust was required to provide retiree health benefits when the employer was still “in business” as defined in the Wage Agreement, but was no longer legally obligated to pay the benefits. Id. at 283. Again the court looked to the intent of the parties and concluded that “the intentions of the parties in providing for retirement health benefits was to guarantee their provision for life.” Id. at 282. After acknowledging that the former employer was no longer legally responsible for the provision of retiree health benefits, the court held that “[t]o construe the contract to create no liability on the part of the 1974 Benefit Plan would have the effect of defeating the expressed intention to provide lifetime ben efits.” Id. at 283. The court thereafter found the 1974 Benefit Trust responsible for the continued provision of health benefits. As noted above, the 1984 Wage Agreement is substantially similar to the 1978 and 1981 Wage Agreements with respect to the plan for the provision of retiree health benefits. The plans established under these Wage Agreements have been interpreted consistently by the courts, and" }, { "docid": "2024553", "title": "", "text": "Complaint ¶ 9. Short argued that “[t]he defendant’s denial of the plaintiff’s application for full retirement benefits based upon regulations adopted subsequent to his retirement is arbitrary and capricious, a violation of the fiduciary duties of the Trustees, and is in breach of the plaintiff’s contractual rights to retirement benefits.” Id. 110. Both parties moved for summary judgment. On January 28, 1983, the District Court granted summary judgment for Short and ordered the Trustees to enroll Short as a pensioner in the 1950 Pension Trust with all related health benefits pursuant to the 1950 Benefit Plan and Trust, effective the date of Short’s pension application, January 25, 1980. II. Analysis A. Prior to the Supreme Court’s decision in United Mine Workers of America Health & Retirement Funds v. Robinson, 455 U.S. 562, 102 S.Ct. 1226, 71 L.Ed.2d 419 (1982), case law in this Circuit dealing with the 1950 Fund established the authority of federal courts to review the reasonableness both of the eligibility requirements adopted by the Trustees and of the Trustees’ application of those requirements to individual cases. The standard of review was that “decisions of the trustees on pension eligibility are to be sustained by courts if they are not arbitrary or capricious, and if the trustees’ factual judgments are supported by substantial evidence in the record as a whole.” Maggard v. O’Connell, 671 F.2d 568, 570-71 (D.C.Cir.1982) (footnote omitted); see also Pete v. United Mine Workers of America Welfare & Retirement Fund of 1950, 517 F.2d 1275, 1283 (D.C.Cir.1975) (en banc) (“the Trustees have ‘full authority ... with respect to questions of coverage and eligibility’ and ... the court’s role is limited to ascertaining whether the Trustees’ broad discretion has been abused by the adoption of arbitrary or capricious standards”); Kosty v. Lewis, 319 F.2d 744, 747 (D.C.Cir.1963) (“the Trustees, like all fiduciaries, are subject to judicial correction in a proper case upon a showing that they have acted arbitrarily or capriciously towards one of the persons to whom their trust obligations run”), cert. denied, 375 U.S. 964, 84 S.Ct. 482, 11 L.Ed.2d 414 (1964). In particular," }, { "docid": "10463888", "title": "", "text": "§ 1001 et seq. (“ERISA”). First, plaintiffs assert a cause of action under 29 U.S.C. § 1132 arguing that the requirements established for participation in the allocation of stock under the ESOPs were arbitrary, capricious, and unreasonable. Second, plaintiffs assert that defendants have breached their fiduciary duties imposed by 29 U.S.C. § 1104. In Count II, plaintiffs allege causes of action for common law fraud and securities fraud in violation of state and federal law. Finally, in Count III, plaintiffs have asserted a cause of action for breach of contract. I. Reasonableness of the Participation Requirements According to plaintiffs, the established requirements for participation in the various ESOPs are arbitrary, capricious, and unreasonable because continuously employed Republic employees have been deprived of the same opportunity to fully participate in the stock ownership program as was afforded to other Republic employees that accepted a wage reduction. Courts have been reluctant to modify the eligibility requirements of ERISA-regulated plans that comply with ERISA’s comprehensive standards, standards imposed by other federal laws such as nondiscrimination laws, and standards established by any pertinent collective bargaining agreement. See United Mine Workers of America Health & Retirement Funds v. Robinson, 455 U.S. 562, 574-76, 102 S.Ct. 1226, 1233-34, 71 L.Ed.2d 419 (1982) (“There is no general requirement that the complex schedule of the various employee benefits withstand judicial review on an undefined standard of reasonableness”); Vorpahl v. Retirement Plan for Employees of Union Oil Company of California, 749 F.2d 1266, 1270 (8th Cir.1984). ERISA contains few provisions regulating the terms of benefit plans. It “imposes upon pension plans a variety of substantive requirements relating to participation, funding, and vesting. It also establishes various uniform procedural standards concerning reporting, disclosure, and fiduciary responsibility for both pension and welfare plans. It does not regulate the substantive content of welfare-benefit plans. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 732, 105 S.Ct. 2380, 2385, 85 L.Ed.2d 728 (1985) (citations omitted). Plaintiffs have not alleged that the terms or administration of the ESOPs are inconsistent with any standards established in ERISA. Nor have plaintiffs alleged that the terms or" }, { "docid": "5062213", "title": "", "text": "the Act.” H.R.Rep. No. 533, 93rd Cong., 2d Sess. 17, reprinted in 1974 U.S.Code Cong. & Ad. News 4639, 4655. These remedies include actions for “recovery of benefits due to participants.” Id. Second, the legislative history also reveals that Congress gave the federal courts considerable latitude to develop “a body of Federal substantive law ... to deal with issues involving rights and obligations under private welfare and pension plans.” 120 Cong.Rec. S 29942 (Aug. 22, 1974) (Statement of Sen. Williams). As the Court has already indicated and the parties agree, this “body of substantive law” does not include any case involving a claim for benefits due which closely resembles this situation. Most of the cases under section 1132(a)(1)(B) involve judicial review of a plan’s determination, through its administrators, that plan participants are not eligible for benefits. See, e.g., Haggard v. O’Connell, 671 F.2d 568, 570-71 (D.C.Cir.1982). Here, in contrast, the question is not the plaintiffs’ eligibility for benefits, but rather, the value of those benefits. The judicial decisions reviewing eligibility determinations nevertheless provide a useful yardstick with which to measure the propriety of all benefit determinations made by employee benefit plans. The case law suggests that a determination which results in the withholding of benefits allegedly due must, at the very least, satisfy the arbitrary and capricious standard of review. See, e.g., id. at 570-71. Although a stricter standard might conceivably apply in certain situations, these decisions articulate a minimum standard which governs a Plan’s benefit determinations under section 1132(a)(1)(B). Third, as the defendants correctly assert, benefit determinations cannot be arbitrary and capricious as a matter of law if those decisions contain no element of discretion. For instance, a court may not invalidate as arbitrary and capricious a denial of benefits based solely on eligibility requirements which were established by a collective bargaining agreement. United Mine Workers of America Health & Retirement Funds v. Robinson, 455 U.S. 562, 573-74, 102 S.Ct. 1226, 1232-33, 71 L.Ed.2d 419 (1982). Moreover, an employer’s strict compliance with the substantive terms of an employee benefit plan cannot be termed arbitrary and capricious, unless the provision" }, { "docid": "11049888", "title": "", "text": "v. National Shopmen Pension Fund, 728 F.2d 182 (3d Cir. 1984) (union remedies exhausted through appeal to Pension Fund); Amato v. Bernard, 618 F.2d at 568 (primary purpose of exhaustion requirement is to give pension plan fiduciaries full opportunity to interpret the plan). Because the Court finds exhaustion to be immaterial to the ultimate resolution of this claim, the Court need not, and does not, determine whether Stuart’s failure to pursue his claim through the union’s grievance process precludes judicial review. Rather, the Court assumes, without deciding, for the purposes of this summary judgment motion, that the correspondence on behalf of both Plaintiffs challenging Metropolitan’s recoupment exhausted the remedies available to object to Metropolitan’s action. . Defendant contends that Plaintiffs’ Count II seeks relief pursuant to 29 U.S.C. § 1132(a)(2), and that relief under that section is available only to the Plan. See 29 U.S.C. § 1109 (1982); Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985). The Court, however, has determined that the claim is for relief pursuant to 29 U.S.C. § 1132(a)(1)(B). The discussion in the text assumes that determination. . See Jestings v. New England Tel. and Tel. Co., 757 F.2d 8 (1st Cir.1985); Miles v. New York State Teamsters Conference Pension and Retirement Fund Employee Benefit Plan, 698 F.2d 593 (2d Cir.1983), cert. denied, 464 U.S. 829, 104 S.Ct. 105, 78 L.Ed.2d 108 (1983); Edwards v. Wilkes-Barre Publishing Co. Pension Trust, 757 F.2d 52 (3d Cir.1985); LeFebre v. Westinghouse Electric Corp., 747 F.2d 197 (4th Cir.1984); Offutt v. Prudential Ins. Co., 735 F.2d 948 (5th Cir.1984); Moore v. Reynolds Metals Co. Retirement Program, 740 F.2d 454 (6th Cir.1984), cert. denied, 469 U.S. 1109, 105 S.Ct. 786, 83 L.Ed.2d 780 (1985); Sly v. P.R. Mallory & Co., 712 F.2d 1209 (7th Cir.1983); In re Vorpahl, 695 F.2d 318 (8th Cir.1982); Elser v. I.A.M. Nat'l Pension Fund, 684 F.2d 648 (9th Cir.1982), cert. denied, 464 U.S. 813, 104 S.Ct. 67, 78 L.Ed.2d 82 (1983); Peckham v. Board of Trustees, 653 F.2d 424 (10th Cir.1981); Sharron v. Amalgamated Ins. Agency Services," }, { "docid": "18735031", "title": "", "text": "the terminations of Cook and Marting were due to plant shutdown, such terminations were not discharges within the meaning of section 10.-1(g), and that therefore Cook and Marting were entitled to treatment under section 10.1(g) enabling both to come within the Rule of 65 and to receive immediate pension payments. II. The rule in this and other circuits is that judicial review of decisions by Plan administrators to deny pension benefits is limited to a determination of whether that denial was arbitrary or capricious. Moore v. Reynolds Metal Company Retirement Program for Salaried Employees, 740 F.2d 454, 457 (6th Cir.1984), cert. denied, 469 U.S. 1109,105 S.Ct. 786, 83 L.Ed.2d 780 (1985); Rhoton v. Central States Southeast and Southwest Areas Pension Fund, 717 F.2d 988, 989 (6th Cir.1983); VanGunten v. Central States Southeast and Southwest Areas Pension Fund, 672 F.2d 586, 587 (6th Cir.1982); see also Dennard v. The Richards Group, Inc., 681 F.2d 306, 313 (5th Cir.1982) (applying the arbitrary and capricious standard, and compiling cases from other circuits which apply the traditional standard for review of trusts). The courts apply this limited scope of review to avoid “excessive judicial interference with plan administration.” Miles v. New York State Teamsters Conference Pension and Retirement Fund Employee Pension Benefit Plan, 698 F.2d 593, 599 (2d Cir.), cert. denied, 464 U.S. 829, 104 S.Ct. 105, 78 L.Ed.2d 108 (1983). The Second Circuit has expressed the rule regarding ambiguous language in pension plans this way: Where both the trustees of a pension fund and a rejected applicant offer rational, though conflicting, interpretations of plan provisions, the trustees’ interpretation must be allowed to control. Miles, supra, 698 F.2d at 601 (citing Lowenstern v. International Ass’n of Machinists and Aerospace Workers, 479 F.2d 1211, 1213 (D.C.Cir.1973) (pre-ERISA case which applies the same standards to decisions of pension administrators as do courts interpreting ERISA)). The Plan argues that the district court applied a de novo standard of review by rejecting the interpretation given by the Board and applying its own interpretation of the provisions under review. The Plan concedes that these provisions are, at least, susceptible" }, { "docid": "22304303", "title": "", "text": "(1988); Amato v. Western Union Int’l, 773 F.2d 1402, 1416-17 (2d Cir.1985) (ERISA employers may wear two hats and assume fiduciary status only when functioning in their capacity as plan administrators, not when conducting business), cert. dismissed, 474 U.S. 1113, 106 S.Ct. 1167, 89 L.Ed.2d 288 (1986); Sutton v. Weirton Steel Div. of Nat’l Steel Corp., 567 F.Supp. 1184 (N.D.W.Va.), aff'd, 724 F.2d 406 (4th Cir.1983), cert. denied, 467 U.S. 1205, 104 S.Ct. 2387, 81 L.Ed.2d 345 (1984) (same). See also Shawe & Swerdlin, You Promised! — May an Employer Cancel or Modify Employee Severance Pay Arrangements?, 44 Md.L.Rev. 903 (1985) (discussing Sutton, supra). Under the exclusion from fiduciary standards for business decisions, corporate actions by plan administrators seeking to reduce the amount of unaccrued plan benefits, West v. Greyhound Corp., 813 F.2d 951, 955-56 (9th Cir.1987), terminating a pension plan, Cunha v. Ward Foods, Inc., 804 F.2d 1418, 1432 (9th Cir.1986), and deciding whether or not to establish a plan, Moore v. Reynolds Metals Co., 740 F.2d 454, 456 (6th Cir.1984), cert. denied, 469 U.S. 1109, 105 S.Ct. 786, 83 L.Ed.2d 780 (1985), have all been found nonfiduciary. Several courts have, however, held that misleading communications to plan participants regarding plan administration (for example, eligibility under a plan, the extent of benefits under a plan) will support a claim for breach of fiduciary duty. Local Union 2134, United Mine Workers of America v. Powhatan Fuel, Inc., 828 F.2d 710, 713 (11th Cir.1987); Peoria Union Stock Yards Co. Retirement Plan v. Penn Mut. Life Ins. Co., 698 F.2d 320, 326 (7th Cir.1983) (“Lying is inconsistent with the duty of loyalty owed by all fiduciaries and codified in [29 U.S.C. § 1104].”); Muenchow v. Parker Pen Co., 615 F.Supp. 1405, 1417 (W.D.Wis.1985) (“ERISA supplies a remedy for the wrong [of misrepresentation by fiduciaries] alleged in [plaintiffs] complaint.”); see also Rosen v. Hotel & Restaurant Employees & Bartenders Union of Philadelphia, 637 F.2d 592, 600 n. 11 (3d Cir.1981) (holding a fiduciary is under a duty to communicate material facts to a plan beneficiary), cert. denied, 454 U.S. 898, 102 S.Ct. 398," }, { "docid": "3223814", "title": "", "text": "reliance upon comparisons with “similar” companies to determine the value of the U.S. News stock; and (4) flawed and superficial consideration of U.S. News’ real estate holdings. The second issue concerns plaintiffs’ allegation that U.S. News, the director-defendants and American Appraisal breached fiduciary duties imposed by ERISA in conducting and approving the challenged appraisals. Applicable Standard of Review It is primarily the deferential standard of review afforded by ERISA to the decisions of plan trustees that makes it impossible to grant plaintiffs’ motion in any part. The standard that seems most appropriate to apply to decisions involving the calculation of benefits would leave untouched any such decision that is not arbitrary or capricious. See District 17, Dist. 29, Local Union 7113 v. Allied Corp., 765 F.2d 412, 416-17 (4th Cir.1985); Short v. United Mine Workers of America 1950 Pension Trust, 728 F.2d 528, 533 (D.C.Cir.1984). Yet the review of a benefits determination may require application of a “stern hand and flinty eye,” Maggard v. O’Connell, 671 F.2d 568, 572 (D.C.Cir.1982), where circumstances indicate that the individuals who made the determination are under a duty “to preserve the corpus of [a] trust and, accordingly, are naturally disinclined to make awards from it.” Id. at 571. See also Smith v. United Mine Workers of America 1950 Pension Trust, 576 F.Supp. 1419, 1420-21 (D.D.C.1983). And while plan fiduciaries are held to a “prudent man” standard with regard to their management of the plan and its assets, ERISA § 404(a), 29 U.S.C. § 1104(a); Fink, 772 F.2d at 955; Donovan v. Cunningham, 716 F.2d 1455, 1463-64 (5th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 3533, 82 L.Ed.2d 839 (1984), even that more stringent standard leaves a fiduciary sufficient discretion to render inadvisable reversal of his decision upon summary judgment. Not only are the factual questions raised by a plan fiduciary’s decision not amenable to summary adjudication, but the absence of clear-cut legal standards governing the determination of benefits due leaves the Court without a yardstick by which to gauge the propriety of that determination. What formula should define the level of benefits to" }, { "docid": "3558870", "title": "", "text": "Salaried Plan because the plan administrator — the Pension Board — consists of three Cyclops executives. Plaintiffs assert that Cyclops will benefit from the denial of retirement benefits to plaintiffs, and that the Board thus suffers from an inherent conflict of interest. This Court has in the past applied an “arbitrary and capricious” standard to the review of decisions by plan administrators under ERISA to deny benefits to particular claimants. See Moore v. Reynolds Metals Co. Retirement Program for Salaried Employees, 740 F.2d 454, 457 (6th Cir.1984), cert. denied, 469 U.S. 1109, 105 S.Ct. 786, 83 L.Ed.2d 780 (1985) (“[R]eview ... is limited to a determination of whether the trustees’ actions in administering or interpreting a plan’s provisions are arbitrary and capricious.”); Van Gunten v. Central States, Southeast & Southwest Areas Pension Fund, 672 F.2d 586, 587 (6th Cir.1982). In fact, this Court has already applied this standard of review to this very Plan. See Cook v. Pension Plan for Salaried Employees of Cyclops Corp., 801 F.2d 865, 869-870 (6th Cir.1986). Plaintiffs argue that In re White Farm Equip. Co., 788 F.2d 1186 (6th Cir.1986), overruled sub silencio earlier cases employing the arbitrary and capricious standard. This assertion is incorrect. White Farm involved an employer in bankruptcy who, under the process of reorganization in bankruptcy, attempted to terminate certain insurance benefits under a welfare benefit plan for retired employees. The issue presented on appeal was “whether under ERISA an employer may lawfully exercise a reserved power to terminate an employee welfare benefit plan for retired nonunion employees.” 788 F.2d at 1190. The Court looked to rules of contract construction in resolving this issue. It did not decide what standard of review would apply to a decision by a plan administrator to deny benefits to employees who allegedly were qualified. Thus, our earlier decisions establishing the arbitrary and capricious standard still control. This standard derives from the standard of review applied to union-negotiated pension trusts under section 302(c)(5) of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 186(c)(5). That section imposes a duty of loyalty on section 302 trustees by" } ]

[ { "docid": "12663244", "title": "", "text": "to add an additional component to the substantive definitions of the claims to which it applies. That simply cannot be right. Rules regarding limitations periods do not alter substantive causes of action. Accordingly we do not think the discovery rule should be read to alter the date on which a cause of action accrues. Since it cannot be an accrual doctrine, the discovery rule must instead be one of those legal precepts that operate to toll the running of the limitations period after a cause of action has accrued, as sundry cases have stated. E.g., Richison v. Ernest Grp., Inc., 684 F.3d 1123, 1127 n. 1 (10th Cir.2011) (“The discovery rule, of course, tolls the statute of limitations until a plaintiff acquires sufficient information, which, if pursued, would lead to the true condition of things.”) (citation and internal quotation marks omitted); Epstein v. C.R. Bard, Inc., 460 F.3d 183, 187 (1st Cir.2006) (“The so-called ‘discovery rule’ provides that the limitations period is tolled until ‘events occur or facts surface which would cause a reasonably prudent person to become aware that she or he had been harmed.’ ”) (citation omitted); Fine, 870 A.2d at 858 (The discovery rule “act[s] to toll the running of a statute of limitations,” that is, “to exclude from the running of the statute of limitations that period of time during which a party who has not suffered an immediately ascertainable injury is reasonably unaware he has been injured, so that he has essentially the same rights as those who have suffered such an injury.”); Wal-Mart, 860 A.2d at 319 (“Even after a cause of action accrues, the ‘running’ of the limitations period can be ‘tolled’ in certain limited circumstances. Under the ‘discovery rule’ the statute is tolled where the injury is ‘inherently unknowable and the claimant is blamelessly ignorant of the wrongful act and the injury complained of.’ ”) (citations omitted); Burkholz v. Joyce, 972 P.2d 1235, 1236 (Utah 1998) (“[I]n certain circumstances the discovery rule may operate to toll the period of limitations until the discovery of the facts forming the basis for the cause" } ]

[ { "docid": "8813986", "title": "", "text": "players to believe that their situation was largely a result of the “cozy” collective bargaining relationship between Eagleson on the one hand and Ziegler, Wirtz, and the owners on the other. Thus, by 1989 at the latest, plaintiffs were aware, or should have been aware, of the injury which they allege in Count I (reduced salary and benefits) and the source of the injury (the improper bargaining behavior by Eagle-son). Under an injury discovery rule, nothing more was required to trigger the running of the four-year limitations period. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir.1994) (limitations period commences when “plaintiff has discovered or, by exercising reasonable diligence, should have discovered (1) that he or she has been injured, and (2) that this injury has been caused by another party’s conduct”; “We have in the past stated that a claim accrues in a federal cause of action upon awareness of actual injury, not upon awareness that this injury constitutes a legal wrong”). Indeed, possibly aware that clearly their Count I claim accrued prior to November 7, 1991, the plaintiffs argue that — regardless of their awareness of the alleged injury — the statute of limitations was tolled until 1994 (when Eagleson was indicted) because defendants’ acts of fraudulent concealment prevented them from learning facts essential to pleading the predicate acts of bribery underlying their Count I claim. Thus, we now turn to the issue of fraudulent concealment. B. Fraudulent Concealment In Rotella, the Supreme Court stated that, “[i]n rejecting pattern discovery as a basic rule, we do not unsettle the understanding that federal statutes of limitations are generally subject to equitable principles of tolling, and where a pattern remains obscure in the face of a plaintiffs diligence in seeking to identify it, equitable tolling may be one answer to the plaintiffs difficulty....” Rotella, 120 S.Ct. at 1084 (citation omitted). Unlike the discovery rule, which determines the time of the initial commencement of a limitations period, “[ejquitable tolling functions to stop the statute of limitations from running where the claim’s accrual date has already passed.”" }, { "docid": "8813987", "title": "", "text": "I claim accrued prior to November 7, 1991, the plaintiffs argue that — regardless of their awareness of the alleged injury — the statute of limitations was tolled until 1994 (when Eagleson was indicted) because defendants’ acts of fraudulent concealment prevented them from learning facts essential to pleading the predicate acts of bribery underlying their Count I claim. Thus, we now turn to the issue of fraudulent concealment. B. Fraudulent Concealment In Rotella, the Supreme Court stated that, “[i]n rejecting pattern discovery as a basic rule, we do not unsettle the understanding that federal statutes of limitations are generally subject to equitable principles of tolling, and where a pattern remains obscure in the face of a plaintiffs diligence in seeking to identify it, equitable tolling may be one answer to the plaintiffs difficulty....” Rotella, 120 S.Ct. at 1084 (citation omitted). Unlike the discovery rule, which determines the time of the initial commencement of a limitations period, “[ejquitable tolling functions to stop the statute of limitations from running where the claim’s accrual date has already passed.” Oshiver, 38 F.3d at 1387. Among the circumstances warranting equitable tolling are situations where “the defendant has actively misled the plaintiff respecting the plaintiffs cause of action,” ie. fraudulent concealment. Id. at 1387. “[Wjhere the plaintiff has been actively misled ... the equitable tolling doctrine provides the plaintiff with the full statutory limitations period, starting from the date the facts supporting the plaintiffs cause of action either become apparent to the plaintiff or should have become apparent to a person in the plaintiffs position with a reasonably prudent regard for his or her rights.” Id. at 1389. We have described the differences between the discovery rule inquiry and the equitable tolling inquiry as follows: [T]he discovery rule and the equitable tolling doctrine are similar in one respect and different in another. The doctrines are similar in that each requires a level of diligence on the part of the plaintiff; that is, each requires the plaintiff to take reasonable measures to uncover the existence of injury. The plaintiff who fails to exercise this reasonable diligence may" }, { "docid": "9398710", "title": "", "text": "against Ford, the statute of limitations was equitably tolled by Ford’s affirmative misstatements denying that it gained any economic advantages from Ford Werke’s use of unpaid, forced labor. Equitable tolling stops the statute of limitations from running where the claim’s accrual date has already passed. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994). Equitable tolling may be appropriate, inter alia, where the defendant has actively misled the plaintiff. See id.; see also United States v. Midgley, 142 F.3d 174, 179 (3d Cir.1998); School Dist. of City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir.1981). To avoid dismissal, a complaint asserting equitable tolling must contain particularized allegations that the defendant “actively misled” plaintiff. See 287 Corporate Ctr. Assocs. v. Township of Bridgewater, 101 F.3d 320, 325 (3d Cir. 1996); Oshiver, 38 F.3d at 1387. In the instant case, the Complaint is devoid of any allegations of misrepresentation and concealment. Iwanowa makes vague claims of misrepresentation by Ford for the first time in her brief in opposition to Defendants’ motions to dismiss. (Pl.’s Opp’n Br. at 41.) She alleges that in 1998, a Ford spokesperson issued a statement denying that Ford received significant economic benefits from Ford Werke’s use of forced labor. (Id.) Iwanowa attempted to expand upon these allegations at oral argument and in her April 5, 1999 supplementary-submissions. (I Tr. 51:1-5; Neuborne Supp.Decl. ¶ 23.) Iwanowa now alleges that in 1974, a Ford spokesperson publicly stated that “Ford Motor Co. had no participation in the operation or financial results of Ford [Werke] while the United States was engaged in World War II.” (Neuborne Supp.Decl. ¶ 23.) In considering a 12(b)(6) motion, the Court is limited to the facts alleged in the Complaint; a court cannot consider facts raised for the first time in counsel’s legal memorandum. See Town of Secaucus v. United States Dep’t of Transp., 889 F.Supp. 779, 791 (D.N.J.1995), aff'd, 79 F.3d 1139 (3d Cir.1996); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1424-25 (3d Cir.1997). Accordingly, this Court must disregard the allegations in Iwanowa’s brief and Professor" }, { "docid": "11663651", "title": "", "text": "signed [the September Agreement], what did you understand the assets ti. be that you were conveying? A: I don't really know. I knew the limited partners had control over the technology. I couldn’t give that away.” (Blystra 10-8-01 Dep. at 148:23 149:7; 151:5-9) Blystra further testified that he signed the September Agreements despite this knowledge because Sofo told him to. (Id. at 149:7-9). . There is no evidence in the record that the Limited Partners knew about the suit. Chesapeake was acting as the General Partner of the Limited Partnership at the time, and presumably initiated the suit on behalf of the Limited Partnership. . The injuiy discovery rule is conceptually distinct from equitable tolling based on fraudulent concealment. “The purpose of the discovery rule is to determine the accrual date of a claim, for ultimate purposes of determining, as a legal matter, when the statute of limitations begins to run. Equitable tolling presumes claim accrual. Equitable tolling steps in to toll, or stop, the running of the statute of limitations in light of established equitable considerations.” Forbes, 228 F.3d at 486 (quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1390 (3d Cir.1994)). Plaintiffs’ arguments that equitable tolling should apply in this case will be addressed shortly. . Defendants treat Blystra's knowledge as the Limited Partners' knowledge. Specifically, Defendants point to the Limited Partners' response to Interrogatory 17 where they indicate that Blystra acted \"on their behalf” when he advised Dan Fratini of the Limited Partners' rights in the Micro-Set. The Court is not persuaded that Blystra's knowledge can be imputed to the Limited Partners on this basis. . The Court recognizes that in a quasi-contract action for unjust enrichment New Jersey courts employ a \"last rendition of services” test, rather than an injury discovery rule, to determine claim accrual. See Baer v. Chase, 392 F.3d 609, 622 (3d Cir.2004) (citing Rabi-nowitz v. Mass. Bonding & Ins. Co., 119 N.J.L. 552, 557, 197 A. 44 (1938)). However, the Plaintiffs’ claims in this suit are based on a tort theory, not a quasi-contract theory. \"The Restatement of Torts" }, { "docid": "13805415", "title": "", "text": "Corp., 111 F.3d 1116, 1124-25 (3d Cir.1997) (quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 (3d Cir.1994)); see also Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). Application of the discovery rule, however, acts to delay the initial running of the statutory limitations period. Under the discovery rule, the statute of limitations does not start to run until the “plaintiff has discovered or, by exercising reasonable diligence, should have discovered (1) that he or she has been injured, and (2) that this injury has been caused by another party’s conduct.” Oshiver, 38 F.3d at 1386; see also Hayward v. Med. Ctr. of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992). In a somewhat similar vein, equitable tolling stops the running of the statute of limitations in light of established equitable considerations. See Oshiver, 38 F.3d at 1390. Equitable tolling may be appropriate “(1) where the defendant has actively misled the plaintiff respecting the plaintiffs cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.” Id. at 1387. To invoke equitable tolling, a party must show that it exercised reasonable diligence in investigating and bringing its claims. Id. at 1390. Typically, when laches is asserted as a defense, the defending party must show the plaintiffs failure to exercise due diligence and prejudice to the defending party resulting from the delay. See Stilp v. Hafer, 553 Pa. 128, 132, 718 A.2d 290, 292 (1998) (citing Sprague v. Casey, 520 Pa. 38, 45, 550 A.2d 184, 187 (1988)). Where, as here, the statutory period has expired, the burden of establishing reasonable diligence under laches shifts to the plaintiff. See E.E.O.C. v. Great Atlantic & Pacific Tea Co., 735 F.2d 69, 80 (3d Cir.1984) A common element to the discovery rule, the equitable tolling doctrine and the defense of laches, and the issue central to this case, is the requirement that" }, { "docid": "22242701", "title": "", "text": "interchangeably by other judges. In the Seventh Circuit, Judge Posner has identified two “tolling doctrines”: “equitable estoppel” and “equitable tolling.” Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir.1990); see Shropshear, 275 F.3d at 595. He uses “equitable estoppel” to mean a bar that prevents a defendant from relying on a statute of limitations as a defense where “the defendant takes active steps to prevent the plaintiff from suing in time, as by promising not to plead the statute of limitations.” Cada, 920 F.2d at 450-51. He notes that “equitable estoppel” is sometimes called “fraudulent concealment,” id. at 451, but “must not be confused with efforts by a defendant in a fraud case to conceal the fraud,” id. (emphasis added). If successful, those efforts, he says, “postpone the date of accrual [and] are thus within the domain of the discovery rule,” id. (citation omitted), i.e., the rule that determines when a cause of action accrues. However, in his more recent discussion of the issue, he calls fraudulent concealment “one instantiation” of “equitable estoppel.” Shropshear, 275 F.3d at 597. He uses “equitable tolling” to mean suspension of a statute of limitations where the plaintiff “despite all due diligence ... is unable to obtain vital information bearing on the existence of [a] claim ... [absent] a wrongful — or any — effort by the defendant to prevent the plaintiff from suing.” Cada, 920 F.2d at 451. In the Third Circuit, Judge Lewis has viewed fraudulent concealment of a cause of action as one circumstance warranting “equitable tolling,” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994); he has regarded the discovery rule (accrual) as concerned with a plaintiffs awareness, actual or imputed, of “actual injury” and equitable tolling as concerned with awareness, actual or imputed, of “the facts supporting the plaintiffs cause of action,” id. at 1390; see Forbes v. Eagleson, 228 F.3d 471, 486 (3d Cir.2000) (following terminology of Oshiver). Our Court has used “equitable tolling” to mean fraudulent concealment of a cause of action that has “in some sense accrued earlier,” see Pinaud, 52" }, { "docid": "13805414", "title": "", "text": "Under the June 1987 stipulation, legal title still remained with the debtors and PVHR was merely to hold the funds passively in an agency relationship as escrow agents for the benefit of the estate until further order of the Bankruptcy Court. Since the June 1986 order and the June 1987 stipulation neither singly or jointly created an express trust, therefore, the statute of limitations started to run no later than April 26, 1988, the date of Ganz’ final theft from the debtors’ estate. The decision of the Bankruptcy Court, based on uncontested facts, that the parties did not create an express trust with Continental Bank and PVHR as trustees is thus legally correct. 2. The Equitable Tolling Doctrine, Discovery Rule, and a Defense to Laches Plaintiffs seek to avoid the consequences of the statute of limitations by pointing to the equitable doctrine of tolling, the discovery rule and laches. “ ‘As a general rule, the statute of limitations begins to run when the plaintiffs cause of action accrues.” ’ New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1124-25 (3d Cir.1997) (quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 (3d Cir.1994)); see also Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). Application of the discovery rule, however, acts to delay the initial running of the statutory limitations period. Under the discovery rule, the statute of limitations does not start to run until the “plaintiff has discovered or, by exercising reasonable diligence, should have discovered (1) that he or she has been injured, and (2) that this injury has been caused by another party’s conduct.” Oshiver, 38 F.3d at 1386; see also Hayward v. Med. Ctr. of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992). In a somewhat similar vein, equitable tolling stops the running of the statute of limitations in light of established equitable considerations. See Oshiver, 38 F.3d at 1390. Equitable tolling may be appropriate “(1) where the defendant has actively misled the plaintiff respecting the plaintiffs cause of action; (2) where" }, { "docid": "10631538", "title": "", "text": "950 F.2d 919, 925 (3d Cir.1991). Similarly, equitable tolling will suspend the running of the statute of limitations “(1) where the defendant has actively misled the plaintiff respecting the plaintiffs cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994) (citations omitted). Like the discovery rule, equitable tolling requires the plaintiff to demonstrate “that he or she could not, by the exercise of reasonable diligence, have discovered essential information bearing on his or her claim.” Id. at 1390 (citation omitted). In assessing the finding that Mushroom failed as a matter of law to exercise reasonable diligence for purposes of the discovery rule and equitable tolling, we are guided by the general rule that such determinations are typically within the jury’s province unless “the facts are so clear that reasonable minds cannot differ.... ” Melley v. Pioneer Bank, N.A., 834 A.2d 1191, 1201 (Pa.Super.2003) (citation omitted). During the time of Ganz’s defalcations, Mushroom was in Chapter 11 bankruptcy, and was therefore a debtor-in-possession. See 11 U.S.C. § 1101(1). As we recently pointed out, “[i]n Chapter 11 cases where no trustee is appointed, [11 U.S.C.] § 1107(a) provides that the debtor-in-possession, i.e., the debtor’s management, enjoys the powers that would otherwise vest in the bankruptcy trustee. Along with those powers, of course, comes the trustee’s fiduciary duty to maximize the value of the bankruptcy estate.” Official Committee of Unsecured Creditors of Cybergenics Corp. v. Chinery, 330 F.3d 548, 573 (3d Cir.2003) (en banc). The debtor-in-possession’s fiduciary duty to maximize includes the “ ‘duty to protect and conserve property in its possession for the benefit of creditors.’ ” In re Marvel Entertainment Grp., Inc., 140 F.3d 463, 474 (3d Cir.1998) (citation omitted). Thus, there is no question that Mushroom, acting through its representatives Arnold and Cutaiar, had a fiduciary duty to protect and maximize the estate’s assets. This duty formed the foundation for" }, { "docid": "22361771", "title": "", "text": "state limitations period for federal claims in exceptional circumstances but finding none present); Nunnally v. MacCausland, 996 F.2d 1, 4-5 (1st Cir.1993) (remanding for factual determination as to whether alleged mental illness justified equitable tolling). Federal courts may toll statutes of limitations for federal laws where the plaintiff “in some extraordinary way has been prevented from asserting his or her rights.” Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir.1997) (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994)); see also Bowen v. City of New York, 476 U.S. 467, 480, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986) (authorizing equitable tolling where consistent with congressional intent). The doctrine prevents a party from profiting from its own wrong doing. See Oshiver, 38 F.3d at 1388. Equitable tolling stops the statute of limitations from running when the date on which the claim accrued has already passed. See id. Equitable tolling can be applied to suits brought under the federal civil rights statutes when the state statute of limitations would otherwise frustrate federal policy, see, e.g., Heck, 997 F.2d at 358, because as Wilson recognized, the “adopted” state rule operates “as a federal rule responsive to the need whenever a federal right is impaired.” Wilson, 471 U.S. at 269, 105 S.Ct. 1938. When a plaintiff requests federal equitable tolling but the facts underlying that request are disputed or unclear, a court may remand the case to determine if the facts actually support tolling. See Nunnally, 996 F.2d at 5-7. If Elizabeth’s allegations prove on remand to be true, we conclude that in this situation, where a guardian conspires to deprive a mentally incompetent person of her constitutional and civil rights, equitable tolling might be appropriate. Elizabeth would then be entitled to revive the two-year period that the Pennsylvania law provides for her to bring her claim. See Oshiver, 38 F.3d at 1389. We are not, in remanding this case to the District Court, holding that a mentally incompetent plaintiff would never be bound by state statute of limitations provisions in federal civil rights actions or, alternatively, that she" }, { "docid": "10631537", "title": "", "text": "The bankruptcy and district courts held that, as a matter of law, Mushroom (through Arnold and Cuta-iar) failed to exercise due diligence in superintending Ganz’s oversight of the. funds, and therefore could not invoke either the discovery rule or equitable tolling to preserve its claims against all Defendants. For the reasons that follow, we find that there are genuine issues of material fact concerning Mushroom’s reasonable diligence for the fact-finder to determine. Under Pennsylvania’s discovery rule, the statute of limitations will not begin to run until “the plaintiff reasonably knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct.” In re TMI, 89 F.3d 1106, 1116 (3d Cir.1996) (quoting Cathcart v. Keene Indus. Insulation, 324 Pa.Super. 123, 471 A.2d 493, 500 (1984)) (internal quotation marks omitted). The discovery rule will only toll the statute of limitations where the plaintiff shows that he or she has exercised “ ‘reasonable diligence’ in ascertaining the existence of -the injury and its cause.” Bohus v. Beloff, 950 F.2d 919, 925 (3d Cir.1991). Similarly, equitable tolling will suspend the running of the statute of limitations “(1) where the defendant has actively misled the plaintiff respecting the plaintiffs cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994) (citations omitted). Like the discovery rule, equitable tolling requires the plaintiff to demonstrate “that he or she could not, by the exercise of reasonable diligence, have discovered essential information bearing on his or her claim.” Id. at 1390 (citation omitted). In assessing the finding that Mushroom failed as a matter of law to exercise reasonable diligence for purposes of the discovery rule and equitable tolling, we are guided by the general rule that such determinations are typically within the jury’s province unless “the facts are so clear that reasonable minds cannot differ.... ” Melley v." }, { "docid": "22242702", "title": "", "text": "Shropshear, 275 F.3d at 597. He uses “equitable tolling” to mean suspension of a statute of limitations where the plaintiff “despite all due diligence ... is unable to obtain vital information bearing on the existence of [a] claim ... [absent] a wrongful — or any — effort by the defendant to prevent the plaintiff from suing.” Cada, 920 F.2d at 451. In the Third Circuit, Judge Lewis has viewed fraudulent concealment of a cause of action as one circumstance warranting “equitable tolling,” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994); he has regarded the discovery rule (accrual) as concerned with a plaintiffs awareness, actual or imputed, of “actual injury” and equitable tolling as concerned with awareness, actual or imputed, of “the facts supporting the plaintiffs cause of action,” id. at 1390; see Forbes v. Eagleson, 228 F.3d 471, 486 (3d Cir.2000) (following terminology of Oshiver). Our Court has used “equitable tolling” to mean fraudulent concealment of a cause of action that has “in some sense accrued earlier,” see Pinaud, 52 F.3d at 1156 (characterizing the plaintiffs argument to allege that “even if [the plaintiffs claims] in some sense accrued earlier, the statute of limitations was equitably tolled by virtue of the individual defendants’ fraudulent concealment of their actions”), and to mean fraudulent concealment that postpones the accrual of a cause of action, Cerbone v. International Ladies’ Garment Workers’ Union, 768 F.2d 45, 48 (2d Cir.1985) (“Under this doctrine [of equitable tolling], the statute does not begin to run until the plaintiff either acquires actual knowledge of the facts that comprise his cause of action or should have acquired such knowledge through the exercise of reasonable diligence .... The doctrine has been applied ... where the facts show that the defendant engaged in conduct, often itself fraudulent, that concealed from the plaintiff the existence of the cause of action”) (internal quotation marks and citation omitted). We have also used “equitable estoppel” to mean fraudulent concealment that postpones the running of the statute of limitations, see Keating, 706 F.2d at 382 (noting that under federal law “when" }, { "docid": "22377528", "title": "", "text": "extend the reach of the discovery rule to delay accrual until a plaintiff learned that a legal injury had occurred, as Appellant requests, a statute of limitations would become effectively meaningless, as a plaintiff could, through ignorance or fraud, bring an age discrimination claim at any point in his lifetime, regardless of how long ago the underlying acts had occurred. We decline this invitation, and conclude that the discovery rule does not save Appellant’s untimely ADEA claim. 2. Equitable Tolling Because the time limitations set forth in Title VII are not jurisdictional, they may be modified by equitable concerns, such as tolling. Oshiver, 38 F.3d at 1387 (citing Hart v. J.T. Baker Chemical Co., 598 F.2d 829, 831 (3d Cir.1979)). The doctrine of equitable tolling stops a statute of limitations period from running after a claim has accrued, id., but should be applied “sparingly.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); see also Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (‘We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.”). Appellant bears the burden of proving that the equitable tolling doctrine applies here. Courtney v. La Salle Univ., 124 F.3d 499, 505 (3d Cir.1997). There are three principal situations in which equitable tolling is appropriate: (1) where the defendant has actively misled the plaintiff respecting the plaintiffs cause of action, and that deception causes non-compliance with an applicable limitations provision; (2) where the plaintiff in some extraordinary way has been prevented from asserting his rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum. Oshiver, 38 F.3d at 1387 (citing Sch. Dist. of City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir.1981)). Appellant makes four arguments in support of his contention that equitable tolling is appropriate here. He claims that (1) he was fooled into believing that his route was reduced because he was overworked, and" }, { "docid": "22377527", "title": "", "text": "until October 11, 2000 (the day he met with his attorney), and therefore the limitations period did not begin to run until then. Specifically, he contends that he “did not know he had a possible injury until then.” Brief of Appellant at 38. We read this as meaning that Appellant did not know he had a possible legal injury resulting from the 1993 or 1998 actions until after meeting with his attorney. However, the discovery rule is concerned with knowledge of actual injury, not legal injury. Appellant does not claim he was unaware that USPS reduced his route in 1993, or that it served him with a Notice of Proposed Removal on March 10, 1998. These are the only dates when any alleged injury occurred. Therefore, the latest date on which Appellant’s claim could have possibly accrued was March 31, 1998, his last day of employment. The discovery rule does not excuse his failure to file his Intent To Sue Letter more than two years after the 180-day limitations period had expired. Were we to extend the reach of the discovery rule to delay accrual until a plaintiff learned that a legal injury had occurred, as Appellant requests, a statute of limitations would become effectively meaningless, as a plaintiff could, through ignorance or fraud, bring an age discrimination claim at any point in his lifetime, regardless of how long ago the underlying acts had occurred. We decline this invitation, and conclude that the discovery rule does not save Appellant’s untimely ADEA claim. 2. Equitable Tolling Because the time limitations set forth in Title VII are not jurisdictional, they may be modified by equitable concerns, such as tolling. Oshiver, 38 F.3d at 1387 (citing Hart v. J.T. Baker Chemical Co., 598 F.2d 829, 831 (3d Cir.1979)). The doctrine of equitable tolling stops a statute of limitations period from running after a claim has accrued, id., but should be applied “sparingly.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); see also Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct." }, { "docid": "23337353", "title": "", "text": "claim. Zeleznik v. United States, 770 F.2d 20, 24 (3d Cir.1985) (declining to “make every accrual date indefinite as to unknown possible parties”). It is sufficient that New Castle was aware that its injury was caused in part by another person’s conduct. At the time of the consent decree, New Castle was aware that other persons were partially responsible for the landfill’s condition. Indeed, New Castle brought several contribution actions prior to 1989. New Castle was also aware that NUS’ activity and report played a significant role in the determination of New Castle’s potential liability. On April 19, 1989, New Castle was aware of both its injury and the immediate cause of that injury. We agree with the district court that the discovery rule does not render New Castle’s section 113 claim timely. B. We turn now to the doctrine of equitable tolling. Unlike the discovery rule, equitable tolling presumes the accrual of the cause of action. Equitable tolling stops the running of the statute of limitations in light of established equitable considerations. Oshiver, 38 F.3d at 1390. In Oshiver, we explained that equitable tolling may be appropriate “(1) where the defendant has actively misled the plaintiff respecting the plaintiff’s cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.” Id. at 1387. Relying on the second of these three options, New Castle contends that the difficult implementation of the remedial action at the landfill constituted an extraordinary circumstance preventing it from asserting its rights in a timely fashion. In other words, New Castle contends that it was so busy cleaning up the landfill that it did not have time to bring its suit against NUS. To invoke equitable tolling, New Castle must show that it exercised reasonable diligence in investigating and bringing its claims. Id. at 1390. The district court found that New Castle did not exercise reasonable diligence in investigating and bringing its CERCLA claims. We agree. New Castle discovered NUS’" }, { "docid": "22304442", "title": "", "text": "file a Title VII action is akin to a statute of limitations rather than a jurisdictional bar. Therefore, the time limit is subject to tolling. See, e.g., Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (holding that time limits in Title VII are not jurisdictional but are instead like statutes of limitations); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994) (stating that time limits set forth in Title VII are analogous to statutes of limitations and are subject to equitable modifications). Under equitable tolling, plaintiffs may sue after the statutory time period for filing a complaint has expired if they have been prevented from filing in a timely manner due to sufficiently inequitable circumstances. Ellis v. General Motors Acceptance Corp., 160 F.3d 703, 706 (11th Cir.1998); Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir.1981); Mathews v. Little, Civ. A. No. 92-CV-1114, 1992 WL 192542, *2 (E.D.Pa. July 31, 1992). The caselaw is instructive. The Su preme Court has held that equitable tolling may be appropriate when a claimant received inadequate notice of her right to file suit, where a motion for appointment of counsel is pending, or where the court has misled the plaintiff into believing that she had done everything required pf her. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984). In United States v. Midgley, 142 F.3d 174 (3d Cir.1998), we expressed a willingness to invoke equitable tolling in a number of other circumstances: when the defendant has actively misled the plaintiff; when the plaintiff “in some extraordinary way” was prevented from asserting her rights; or when the plaintiff timely asserted her rights in the wrong forum. See id. at 179; Oshiver, 38 F.3d at 1387. See also Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 618 (3d Cir.1998) (equitable tolling is an appropriate remedy when principles of equity would make a rigid application of the statute of limitations unfair); Shendock v. Office of Workers’ Compensation Programs, 893" }, { "docid": "23337351", "title": "", "text": "1993. It therefore appears that the limitations period expired and that the district court properly dismissed New Castle’s contribution claim with prejudice. New Castle asserts, however, that (1) pursuant to the discovery rule, the cause of action did not accrue until October 28, 1991, when New Castle discovered NUS’ alleged negligence; and (2) the statute of limitations was equitably tolled. A. We first address the discovery rule. “As a general rule, the statute of limitations begins to run when the plaintiffs cause of action accrues.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 (3d Cir.1994). “[T]he discovery rule functions to delay the initial running of the statutory limitations period, but only until the plaintiff has discovered or, by exercising reasonable diligence, should have discovered (1) that he or she has been injured, and (2) that this injury has been caused by another party’s conduct.” Id. at 1386. Once the plaintiff has discovered the injury, the statutory limitations period begins to run and the plaintiff is entitled to the full limitations period. Id. New Castle contends that it did not learn of NUS’ negligence until October 28, 1991. Thus, according to New Castle, it did not know that it was injured or that its injury was caused by another person until that time. We disagree. The discovery rule does not delay the running of the statute of limitations until a plaintiff is aware of all of the facts necessary to bring its cause of action. Under the discovery rule, a claim accrues upon awareness of actual injury, not upon awareness that the injury constitutes a legal wrong. Id. New Castle was aware of its injury in 1989 when it agreed to undertake costly remedial action at the landfill. That New Castle did not know in 1989 that it was agreeing to incur NUS’ potential fair share of the clean-up costs is not relevant under the discovery rule. See id. at 1391. Further, the discovery rule does not delay the accrual of a cause of action until the plaintiff has identified every party who may be liable on its" }, { "docid": "22361770", "title": "", "text": "individual, especially a member of a protected class, who was deprived, as in this case, of her ability to bring a claim through her guardians, from seeking compensation and deterrence. Consequently, the rigidity of the Pennsylvania statute of limitations in regard to mental incompetence, absent a guardian who will protect rather than jeopardize those rights, directly conflicts with Elizabeth’s right as a mentally retarded person to remedy a violation of her constitutionally protected rights. We are thus not obligated to apply that state rule. When the state tolling rules contradict federal law or policy, in certain limited circumstances we can turn to federal tolling doctrine. See Heck v. Humphrey, 997 F.2d 355, 358 (7th Cir.1993) (recognizing equitable tolling applicable to § 1983 actions where state limitations provision conflicts with federal policy); Boos v. Runyon, 201 F.3d 178, 184 (2d Cir.1999) (recognizing that tolling for a person’s mental disability is “highly case-specific” but declining to apply in instant case); Grant v. McDonnell Douglas Corp., 163 F.3d 1136, 1138 (9th Cir.1998) (permitting federal equitable tolling of a state limitations period for federal claims in exceptional circumstances but finding none present); Nunnally v. MacCausland, 996 F.2d 1, 4-5 (1st Cir.1993) (remanding for factual determination as to whether alleged mental illness justified equitable tolling). Federal courts may toll statutes of limitations for federal laws where the plaintiff “in some extraordinary way has been prevented from asserting his or her rights.” Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir.1997) (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994)); see also Bowen v. City of New York, 476 U.S. 467, 480, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986) (authorizing equitable tolling where consistent with congressional intent). The doctrine prevents a party from profiting from its own wrong doing. See Oshiver, 38 F.3d at 1388. Equitable tolling stops the statute of limitations from running when the date on which the claim accrued has already passed. See id. Equitable tolling can be applied to suits brought under the federal civil rights statutes when the state statute of limitations would otherwise frustrate federal" }, { "docid": "21694763", "title": "", "text": "when he is an actual participant in the tort.... His liability is in no way dependent on a finding that [the corporation] is inadequately capitalized, that the corporation is a mere alter ego of [the officer], that the corporate form is being used to perpetrate a fraud, or that corporate formalities have not been properly complied with.... The only crucial predicate to [the officer]’s liability is his participation in the wrongful acts. 587 F.2d 602, 606 (3d Cir.1978). As Sco-lio’s liability is wholly separate from the corporation’s liability, there is no reason to require Sellers to first bring claims against the corporation before pursuing claims against Scolio. Sellers could have brought suit simultaneously, as the parties did in Golman-Hayden Co., 217 F.3d at 349, or they simply could have sued Scolio directly for breaching his duties. 2. Tolling In the alternative, the District Court reasoned that if the claims accrued when the invoices became overdue, “then the limitations period for bringing PACA claims against Mr. Scolio would have been tolled while Plaintiffs first sought relief from United Fruit. Under this scenario, the tolling period would have ended on December 29, 1999, when Plaintiffs learned that United Fruit’s assets were insufficient.” Weis-Buy, 307 F.Supp.2d at 691. Again, we see no justification for tolling the statute of limitations. “Equitable tolling functions to stop the statute of limitations from running where the claim’s accrual date has already passed.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994). Generally, “equitable tolling may be appropriate: (1) where the defendant has actively misled the plaintiff respecting the plaintiffs cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.” Id. None of these situations is present here, and Appellees have offered no justification for tolling the statute of limitations. As explained infra, Sellers were not required to file suit against United Fruit before pursuing an independent action against Scolio. When Sellers were not timely paid, they" }, { "docid": "9398709", "title": "", "text": "Complaint does not allege, that U.S. corporations (such as Ford) were agents of the German government. Thus, this Court concludes that neither the Paris Reparations Treaty nor the London Debt Agreement prevented Iwanowa from bringing forced labor claims against Ford, a U.S. corporation, under the ATCA, a U.S. statute. Furthermore, Iwanowa’s argument that Ford would have passed the cost incurred in defending against forced labor claims onto Ford Werke must also fail. Iwa-nowa’s assertion that as the parent company, Ford would pass its losses onto Ford Werke, thereby defeating the purpose of the London Debt Agreement’s deferral scheme, is speculative at best. There is nothing before this Court enunciating what Ford’s accounting practices are or how and to what extent litigation costs or losses incurred would be passed onto Ford Werke. Consequently, neither the Paris Reparations Treaty nor the London Debt Agreement tolled the limitations periods of the claims against Ford under international law. (1) Equitable Tolling Iwanowa argues that even if the London Debt Agreement does not toll the limitations period of her claims against Ford, the statute of limitations was equitably tolled by Ford’s affirmative misstatements denying that it gained any economic advantages from Ford Werke’s use of unpaid, forced labor. Equitable tolling stops the statute of limitations from running where the claim’s accrual date has already passed. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994). Equitable tolling may be appropriate, inter alia, where the defendant has actively misled the plaintiff. See id.; see also United States v. Midgley, 142 F.3d 174, 179 (3d Cir.1998); School Dist. of City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir.1981). To avoid dismissal, a complaint asserting equitable tolling must contain particularized allegations that the defendant “actively misled” plaintiff. See 287 Corporate Ctr. Assocs. v. Township of Bridgewater, 101 F.3d 320, 325 (3d Cir. 1996); Oshiver, 38 F.3d at 1387. In the instant case, the Complaint is devoid of any allegations of misrepresentation and concealment. Iwanowa makes vague claims of misrepresentation by Ford for the first time in her brief in opposition to Defendants’" }, { "docid": "23584995", "title": "", "text": "statute of limitations therefore begins to run, at the time the employee receives notice of that action and termination is a delayed but inevitable result.”). Absent an applicable saving doctrine, Ruehl’s EEOC charge was untimely, and his ease must be dismissed. The District Court held, however, that Ruehl’s claim was saved by the doctrine of equitable tolling or, in the alternative, the single filing rule. For the reasons that follow, we conclude that neither doctrine applies. A. Equitable Tolling The District Court denied summary judgment because it found there were material issues of fact about whether equita ble tolling should be applied to Ruehl’s charge-filing deadline. On appeal, Ruehl argues that equitable tolling is appropriate for two reasons: (1) Viacom actively misled him by “obtaining an invalid waiver of claims,” that “lulled” him “into believing he had given up his ability to pursue a claim of age discrimination;” and (2) Viacom actively misled him by failing to make required disclosures under the OWBPA. See Ruehl Br. at 25-26. We conclude that Ruehl has not demonstrated extraordinary circumstances that would justify equitable tolling. The ADEA’s timely exhaustion requirement is a non-jurisdictional prerequisite that, like a statute of limitations, is subject to equitable tolling. Commc’ns Workers of Am. v. N.J. Dept. of Pers., 282 F.3d 213, 216-17 (3d Cir.2002) (hereinafter “Communications Workers”). Equitable tolling stops the statute of limitations from running when an EEOC charge’s accrual date has already passed. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994). In Oshiver, we explained two requirements for equitable tolling in an employment discrimination case: the equitable tolling doctrine may excuse the plaintiffs non-compliance with the statutory limitations provision at issue when it appears that (1) the defendant actively misled the plaintiff respecting the reason for the plaintiffs discharge, and (2) this deception caused the plaintiffs non-compliance with the limitations provision. Id. (emphasis added). In addition, “equitable tolling requires the plaintiff to demonstrate that he or she could not, by the exercise of reasonable diligence, have discovered essential information bearing on his or her claim.” In re Mushroom Transp. Co.," } ]

[ { "docid": "22400614", "title": "", "text": "between affirming on the basis that INS detainers serve only a notice function, following the majority view, or remanding, in accord with Vargas, for a particularized determination whether the detainer in this case constituted a request that Roldan be held for the benefit of the INS at the conclusion of his state prison term. Events occurring subsequent to the magistrate judge’s report-recommendation preclude our consideration of this issue. In the first place, the rule in this circuit is that “failure to object timely to a magistrate’s report operates as a waiver of any further judicial review of the magistrate’s decision.” Small, 892 F.2d at 16 (collecting cases). In Small, we clarified the application of this rule to pro se litigants, holding that their failure to object to a magistrate’s report and recommendation would operate as a waiver of appellate review only if the document “explicitly states that failure to object to the report within ten (10) days will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1) and rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure.” Small, 892 F.2d at 16; see also Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.1992) (pro se litigant barred from review of magistrate’s proposed ruling despite immaterial variation from notice language required by Small), cert. denied, — U.S. -, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992). The report-recommendation provided to Roldan plainly satisfies the Small requirements, and additionally referred to the Small decision. Notwithstanding this notification, Roldan filed no objections. On this record, accordingly, we would have a clear basis for affirmance without considering Roldan’s contention that the INS detainer resulted in habeas corpus “custody.” Further, although the Small rule is a nonjurisdictional waiver provision whose violation we may excuse in the interests of justice, see Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 475, 88 L.Ed.2d 435 (1985); Frank, 968 F.2d at 300, we perceive no basis in this record for such a departure. This appeal, furthermore, encounters an even more-fundamental difficulty. 8 U.S.C. § 1105a(e) (1988) provides in pertinent part that: “An order of" } ]

[ { "docid": "10835868", "title": "", "text": "above amount. The parties are directed to inform the Court if and when plaintiffs pay the City Defendants. If plaintiffs do not do so within several months, the Court on notice will dismiss this action with prejudice. FILING OF OBJECTIONS TO OPINION AND ORDER Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Opinion and Order to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Victor Marrero, 500 Pearl Street, Room 660, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Marrero (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(d). SO ORDERED. Dated: New York, New York May 4,2009 . On April 8, 2009, this Court ordered City Defendants to “promptly comply with Local Rule 7.1(c) and provide the pro se plaintiffs with copies of unreported decisions cited in die defendant's Rule 41 motion, and reminds counsel of the need to comply with that Rule in connection with any future motions.” (Dkt. No. 112: 4/8/09 Order.) . Accord, e.g., Loubier v. Modern Acoustics, Inc., 178 F.R.D. at 22;" }, { "docid": "6264020", "title": "", "text": "Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Harold Baer, Jr., 500 Pearl Street, Room 2230, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Baer. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). November 3, 1998. . Sean Serpe, a second-year student at Ford-ham Law School, assisted in the research and preparation of this decision. . To the extent that Tapia-Garcia challenges the effectiveness of his counsel at trial, his claim is procedurally barred. Since the petitioner did not raise this claim on direct appeal, he is required to show both cause for not earlier raising this issue and prejudice resulting from it. See Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998); Bloomer v. United States, 162 F.3d 187, 191-192 (2d Cir.1998). \"Thus, where the defendant is represented by new appellate counsel on direct appeal, and the ineffective assistance claim is based solely on the record developed at trial, the defendant is required to" }, { "docid": "4873242", "title": "", "text": "any Rule 11 violation), and their Rule 11 papers. 3. Plaintiffs’ counsel’s reply papers are due by September 29, 2010. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Victor Marrero, 500 Pearl Street, Room 660, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Marrero (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed. R.Civ.P. 72. Date: New York, New York. August 23, 2010. . Adams and Cruz (together, the “Hochstadt Plaintiffs”) are represented in this action by Attorney Joy Hochstadt (“Hochstadt”), while Ebewo, Hart, Polito, Robinson, and Schemer (together, the \"Penkovsky Plaintiffs”) are separately represented by Attorney Nicholas Penkovsky (\"Penkovsky”). The two groups of Plaintiffs assert some claims common to all, some pertaining to one group and not the other, and some pertaining individually to some members of each group but not the others. Prior to defendants’ filing of the motions to dismiss at issue here, members of both groups dropped some of" }, { "docid": "11773910", "title": "", "text": "Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to my chambers, Honorable John E. Spriz-zo, 40 Foley Square, Room 2201, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Sprizzo. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL — CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). September 10,1999. . After Dominique’s direct testimony and before cross-examination, Grant's counsel asked the court (outside the jury’s presence) if he could ask Dominique if \"she had seen her mother doing things with her daddy’s penis.” (Tr. 600; see also Tr. 562-63.) Defense counsel contended this went to the \"key issue,” the \"critical point,” of how a seven year old girl would know that \"when you move a person's penis, move your hands on a person's penis, that sludge comes out, ... describing an ejaculation.” (Tr. 602, 612.) Consistent with his earlier rulings, the trial judge would not allow the question. (Tr. 613.) . The jury found Grant not guilty of (or deadlocked on) three more serious counts of sexual abuse, \"charging Grant] with forcing Dominique to touch his penis (count one), touching Dominique's vagina (count two) and placing his hand" }, { "docid": "1504178", "title": "", "text": "TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lawrence M. McKen-na, 500 Pearl Street, Room 1640, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge McKenna. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Services, 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). . § 440.10 (l)(h) states in pertinent part: At any time after the entry of judgement, the court in which it was entered may, upon motion of the defendant, vacate such judgement upon the ground that: .... (h) The judgement was obtained in violation of right of the defendant under the Constitution of this state or of the United States. . Prior to amendment by the AEDPA, 28 U.S.C. § 2254(b) provided that: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the court of the State, or that there is either an" }, { "docid": "18027080", "title": "", "text": "by the AEDPA’s one-year statute of limitations. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Deborah A. Batts, 500 Pearl Street, Room 2510 and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Batts. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86(199), 130 L.Ed.2d 38; Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). Aug. 11,1997. . Because there are \"gaps\" during which Roldan did not have direct appeals or collateral attacks pending in state court, the one-year period actually would have elapsed earlier than April 1994. As that exact date has no bearing on the Court's analysis, it is not necessary to calculate it. . See also Valentine v. Senkowski, 966 F.Supp. 239, 240-41 (S.D.N.Y.1997) (Brieant, J.) (pro se petition four months after AEDPA is timely)." }, { "docid": "1957403", "title": "", "text": "retaliate against his estranged wife for leaving him (e.g., Tr. 1586-602, 1792-93), and that the handwriting evidence was not sufficient to link Franza to the crimes beyond a reasonable doubt (Tr. 1803-08). Accordingly, it was reasonable for Fran-za’s trial counsel to not have pursued the “fabricated evidence” defense, but instead to have argued reasonable doubt based on problems with the handwriting evidence. Trial counsel’s strategy was reasonable; trial counsel was not ineffective. CONCLUSION For the reasons set forth above, Fran-za’s habeas corpus petition should be denied as without merit. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fifteen (15) days from service of this Report to file written objections. See also Fed. R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). June 7,1999. . Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). . See United States v. Gagnon, 470 U.S. 522, 526-27, 105 S.Ct 1482, 84" }, { "docid": "18233458", "title": "", "text": "CONCLUSION For the reasons set forth above, plaintiffs’ motion to compel the Publications to comply with the subpoenas is GRANTED limited to the reported trade data for the Henry hub, and subject to the additional limitations discussed above. Based on the parties’ agreement at oral argument (11/9/05 Oral Arg. Tr. at 97-98), the Court stays implementation of this Opinion and Order for the ten (10) day period allowed for the filing of objections; if objections are filed, by agreement of the parties, the stay will remain in effect until the objections are decided by Judge Marrero (or until further Court order). FILING OF OBJECTIONS TO THIS OPINION AND ORDER Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Opinion to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Victor Marrero, 40 Centre Street, Room 414, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Marrero. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). SO ORDERED. . According to Platts, “both the daily and monthly indices are subject to editorial and journalistic judgment at every step of" }, { "docid": "3355539", "title": "", "text": "they had gone to buy cigarettes. While the defendant was waiting in his car, the victim was making a phone call on, the corner and an unknown man came and shot him. (Id. at p. 4.) It is significant that, as Justice Crane found, Rodriguez decided to plead guilty after he learned that the eyewitness would be available to testify at trial. (Gov’t Aff. Ex. I: 3/16/90 Opinion at 8-11.) Therefore, it was not objectively unreasonable for appellate counsel to conclude that if he challenged Rodriguez’s guilty plea on appeal, any “victory” in the appellate court would be a Pyrrhic victory. CONCLUSION For the reasons set forth above, I recommend that the Court deny Rodriguez’s habe-as corpus petition on the merits, with prejudice. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable John E. Sprizzo, 40 Centre Street, Room 2201, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Sprizzo. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P." }, { "docid": "16378520", "title": "", "text": "(“An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state.”) (emphasis added). CONCLUSION For the reasons set forth above, the Court should dismiss with prejudice Fluellen’s petition as barred by the AEDPA’s one-year statute of limitations, or at least deny the petition without prejudice as a “mixed” petition. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). May 21,1997 SUPPLEMENTAL REPORT AND RECOMMENDATION To the Honorable Kimba M. Wood, United States District Judge: On May 21, 1997, I issued a Report and Recommendation recommending “that the Court summarily dismiss petitioner George Fluellen’s habeas corpus petition on the ground that he is not entitled to relief, since his petition" }, { "docid": "17278410", "title": "", "text": "action is clearly the superior method of adjudication here. CONCLUSION For the reasons set forth above, the Court should certify the proposed plaintiff class pursuant to Rule 23(b)(3). SCHEDULING ORDER The parties are ordered to confer and submit to the Court by August 2, 2002 a joint proposed plan for and language of notice to the class pursuant to Rule 23(c)(2). FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Proce dure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Berman. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). Dated: July 22, 2002. . Fed.R.Civ.P. 23(b)(3) provides that: An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition ... the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action" }, { "docid": "1957297", "title": "", "text": "claim in seeking leave to appeal to the Court of Appeals itself was a procedural default barring the claim from federal habeas review absent cause and prejudice (not here present). See, e.g., Jordan v. Lefevre, 22 F.Supp.2d 259, 261-62, 266-69 (S.D.N.Y.1998) (Mukasey, D.J. & Peck, M.J.), and cases cited therein. Veras’s due process sentencing claim is barred from federal habeas review. CONCLUSION For the reasons set forth above, the Court should deny Veras’s petition for a writ of habeas corpus. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Harold Baer, Jr., 500 Pearl Street, Room 2230, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Baer. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert, denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Edüd 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). March 15,1999. . Nancy M. Lopez, a second-year student at New York Law School, assisted in the research and preparation of this opinion. . In that earlier petition, Veras claimed that \"(1) the trial court erred in denying" }, { "docid": "5445644", "title": "", "text": "F.Supp. 535, 542 (E.D.N.Y.1991), aff'd sub nom. Laaman v. United States, 973 F.2d 107, 113-14 (2d Cir.1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993). Torres does not claim that he urged his appellate counsel to not raise these issues and instead to raise trial counsel’s ineffectiveness. Based on the “highly deferential” Strickland review standard, Torres’ appellate counsel’s conduct does not fall “outside the wide range of professionally competent assistance.” Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066. Torres’ habeas claim of ineffective assistance of appellate counsel therefore should be denied. CONCLUSION For the reasons set forth above, the Court should deny Torres’ petition for a writ of habeas corpus. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Denise L. Cote, 500 Pearl Street, Room 1040, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Cote. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL—CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). MEMORANDUM OPINION and" }, { "docid": "12314261", "title": "", "text": "will, and can have no breach of contract claim under New York law. See, e.g., Sherman v. HarperCollins Publishers, Inc., 98 Civ. 2809, 1998 WL 437158 at *3-4 (S.D.N.Y. July 31, 1998) (citing cases). CONCLUSION For the reasons set forth above, I recommend that the Court grant defendants’ summary judgment motion. FILING OF OBIECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, 500 Pearl Street, Room 1010, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Stein. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd, 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). . Citations to Defendants' Rule 56.1 Statement also include the record references cited in the Rule 56.1 Statement. The Court notes that plaintiff Douglas' counsel did not file an opposition Rule 56.1 Statement as required by S.D.N.Y. Local Civil Rule 56.1(b), and therefore the statements in defendants’ Rule 56.1 Statement are deemed admitted. See S.D.N.Y. Local Civil Rule 56.1(c); see also, e.g., DiCola v. SwissRe Holding (N. Am.), Inc.," }, { "docid": "16881491", "title": "", "text": "admissible evidence that Officer Ruiz called him a snitch, Watson has not established an essential element of his case and thus Officer Ruiz’s summary judgment motion should be granted. CONCLUSION For the reasons set forth above, I recommend that defendant Ruiz’s summary judgment motion be granted. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Amy requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). . The Courts prior opinion dismissed the action as to defendants McGinnis and Many, subject to the filing of an amended complaint. Defendant Watson did not serve or file an amended complaint. Plaintiff Watson also was given until June 15, 1997 to serve the complaint on defendant Corrections Officer Decker. He did not do so and the Court recommends dismissal of the action as to Decker without prejudice pursuant to Fed.R.Civ.P. 4(m) See Watson" }, { "docid": "15176974", "title": "", "text": "amended) (“An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state.”) (emphasis added). CONCLUSION For the reasons set forth above, the Court should deny Johnson’s federal habeas petition without prejudice as a “mixed” petition. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 750 and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). May 22,1997 DATED: New York, New York . It appears from the Petition and a reading of the First Department's decision that Johnson's first and second habeas grounds were raised on direct appeal. Compare Petition ¶ 12(A-B) with People v. Johnson, 220 A.D.2d 277, 632 N.Y.S.2d 107 (1st Dep’t 1995). It is not clear from the Petition and the First Department's decision whether Johnson raised" }, { "docid": "15075267", "title": "", "text": "“has no constitutional rights that could have been violated.... She herself has no right to visitation or telephone contact with her inmate husband”). Moreover, as noted above, plaintiffs have not presented any evidence that the named defendants had any involvement in Jackson’s transfer to another prison. Accordingly, defendants should be granted summary judgment dismissing Ruby Jackson’s claims. CONCLUSION For the reasons set forth above, the Court recommends that defendants’ summary judgment motion be granted. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). . Johnson Decl. Ex. A. . Jackson was charged with violation of Rule 113.10 which states that \"[i]nmates shall not make, possess, sell or exchange any item of contraband that may be classified as a weapon by description, use or appearance.” Johnson Aff. ¶ 4 &" }, { "docid": "17836115", "title": "", "text": "interests of judicial economy demand that parties may bring suit here only by showing a substantial connection between the cause of action and this district. Raines v. Switch Mfg. Corp., 1996 WL 413720 at *3. Here, as in Raines, this case has no connection to New York. It should be transferred to the District of New Mexico. CONCLUSION For the reasons set forth above, the Court recommends that BANTSA’s (1) partial summary judgment motion as to the Third Count of Coker’s complaint (account closing claim) be granted, (2) motion to dismiss for failure to satisfy the amount in controversy requirement be denied, and (3) motion to transfer the case to the District of New Mexico be granted. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable John F. Keenan, 500 Pearl Street, Room 1930, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Keenan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). . The new" }, { "docid": "2705737", "title": "", "text": "also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Michael B. Mukasey, 500 Pearl Street, Room 2240, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Mukasey. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). . References to \"Ex.” are to the Appendix of exhibits submitted by the People. . Jordan also filed a pro se application for leave to appeal, on or about April 22, 1997. His pro se application, however, also merely referred to the briefs below: 4. The basis upon which these points of law rest are effective legal representation, inter alia. 5. Said questions of law are enumerated in the enclosed brief.... (Jordan Pro Se Aff. in Supp. of Application for Certificate Granting Leave to Appeal, ¶¶ 4-5.) . Accord, e.g., Carderas v. Superintendent, Malone Correctional Facility, No. CV-94-5093, 1996 WL 497138 at *3-4 (E.D.N.Y. Aug.26, 1996) (excessive sentence claim procedurally barred where raised before 2d Dep’t but not in application for leave to appeal); DeLeon v. Hanslmaier, No. CV-94-5512, 1996 WL 31232 at *3 (E.D.N.Y. Jan.19, 1996) (\"The fact that petitioner attached his brief submitted to the Appellate Division [with his application for leave to appeal to the Court of Appeals]" }, { "docid": "8230798", "title": "", "text": "American Casualty’s cross-claims (Dkt. No. 375) is granted on consent as to ADF and DENIED without prejudice as to SMI. Strandberg’s motion to dismiss RVA’s sixth-party complaint (Dkt. No. 339) is DENIED without prejudice. After the completion of discovery, SMI, ADF and Strandberg can renew their motions as summary judgment motions. SO ORDERED. FILING OF OBJECTIONS TO THIS OPINION AND ORDER Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Opinion and Order to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund, v. Herrmann, 9 F.3d 1049,1054 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(d). . Other fifth-party defendants, in addition to Bovis, have asserted cross-claims against SMI/ADF. (See, e.g., Dkt. No. 267: Aspro Mechanical Contracting, Inc. Am. Answer to Am. 5th Party Compl. ¶¶ 168-69; Dkt. No. 207: Heritage Mechanical Services, Inc. Answer to Am. 5th Party Compl. ¶¶ 43-49.) . Other sixth-party defendants, in addition to YAS, have asserted cross-claims against Strandberg. (See, e.g., Dkt." } ]

[ { "docid": "1151356", "title": "", "text": "made to any improper claim. Bankruptcy Rule 13-307, 11 U.S.C. §§ 1302(b)(1) and 704(4). Otherwise, a proof of claim filed in accordance with 11 U.S.C. § 501 is deemed allowed, and the filing thereof is prima facie evidence of the claim. Bankruptcy Rules 301(b), 13-301(b), Interim Rule 3001(b)(5). Before the case has been closed, an allowed claim \"may be reconsidered for cause. The claim may be reallowed or disallowed by the Court according to the equities of the case. 11 U.S.C. § 502(j). The terms “cause” and “equities of the case” are not defined and this is a matter of judicial construction. It is the opinion of this Court that the movant for reconsideration of the order on allowance of claims bears a burden similar to a party seeking a reconsideration of a final order of the court under Civil Rule 60, such as discovery of a clerical error in the order of allowance; newly discovered evidence which could not have been presented to the court at an earlier date, as contemplated by established judicial procedures and before rights have attached; fraud, misrepresentation or other misconduct of Defendant; or the order is void. The record sub judice does not permit a dismissal of the action before evidence is adduced. The Debtor-Movant has, at least, set forth a claim for relief con-formably to Civil Rule 8(a)(2) and Bankruptcy Rule 708 and is entitled to an evi-dentiary hearing. ORDERED, ADJUDGED AND DECREED, that Defendant’s motion to dismiss is denied." } ]

[ { "docid": "15929647", "title": "", "text": "confirmation” so as to fall within the res judicata bar of section 1327(a). Indeed, as is normally the case with court decisions, a motion to reconsider offers the means by which to change the very decision which otherwise would become res judicata. Bernard, 189 B.R. at 1021, n. 4. Where possible, courts must give effect to all relevant sections of the Code, reading them in a collective fashion. See Buttitta v. City of Chicago, 9 F.3d 1198, 1204 (7th Cir.1993). For this reason, the Court rejects Daimler’s argument that confirmation precludes reconsideration of a claim under § 502(j). Rather, the interests of finality and judicial economy may be considered in determining whether cause exists to reconsider the subject claim and whether reconsideration is equitable. Deadline to File a § 502(j) Motion Federal Rule Bankruptcy Procedure 9024 states that a motion for the reconsideration of an order allowing or disallowing a claim against the estate “without a contest” is not subject to the time limitations prescribed in Fed.R.Civ.P. 60(b). From this, the Court concludes that there is no deadline to file a § 502(j) motion unless the claim was allowed or disallowed by way of an adversary proceeding or other contested litigation. Here, Daimler’s objection to the Plan was resolved by consent before the Court heard from the parties on the matter. This does not constitute a “contest” for purposes of Rule 9024 and, thus, the Debt- or was free to seek reconsideration of Daimler’s claim at any time. Standard for Reconsideration Section 502© states that a claim may be reconsidered “for cause.” “Cause” is not explicitly defined in the Code or in the Rules, and there is some disagreement among the courts as to its meaning. See In re Watkins, 240 B.R. 735, 739 (Bankr.C.D.Ill.1999). Numerous courts have likened the “cause” standard found in section 502© with the substantive requirements of Bankruptcy Rule 9024 and Rule 60(b) of the Federal Rules of Civil Procedure. See, e.g., In re Colley, 814 F.2d 1008, 1010-1011 (5th Cir.1987); cert. denied, 484 U.S. 898, 108 S.Ct. 234, 98 L.Ed.2d 193 (1987); In re W.F." }, { "docid": "15981372", "title": "", "text": "USF argues that the bankruptcy court erred in denying its motion for reconsideration because: (1) it ignored evidence that Mrs. Wylie had misrepresented, or at least selectively produced, her school records in order to justify a reduction of the Claim to $860.00; and (2) it ignored the testimony of an agent for USF, Ruth Hankins, establishing that USF did not receive the Notice setting the hearing on the Objection. USF also asserts that because its Claim is a nondischargeable student loan, the bankruptcy court erred when it permitted the Debtors to challenge the amount of the Claim without commencing an adversary proceeding. On the other hand, the Debtors contend that the bankruptcy court denied the motion for reconsideration, not for reasons related to the merits of the Claim, but because USF failed to respond to the Objection in a timely fashion and failed to establish an excuse for this failure. Further, because the Debtors admit that the Claim is nondischargeable, an adversary proceeding was not required to challenge the amount of the Claim. A. Applicability of FRCP 60(b) “A claim that has been allowed or disallowed may be reconsidered for cause.” II U.S.C. § 502(j). Rule 3008 implements section 502(j): “[a] party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order.” Rule 3008, however, is silent as to the standard applicable to a motion seeking to reconsider the allowance or disallowance of claims. When a motion is filed pursuant to Rule 3008 within the 10-day period to appeal the original order allowing or disallowing the claim, the motion is analogous to a motion for a new trial or to alter or amend the judgment pursuant to FRCP 59 as incorporated by Rule 9023. See Abraham v. Aguilar (In re Aguilar), 861 F.2d 873, 874-75 (5th Cir.1988). When reconsideration under Rule 3008 is sought after the 10-day appeal period has expired, the motion is subject to the constraints of FRCP 60(b) as incorporated by Rule 9024. In re Aguilar, 861 F.2d" }, { "docid": "2130105", "title": "", "text": "to the instant case, a claim of the debtor’s prior law firm was objected to. The creditor did not appear at the hearing and the claim was disallowed. Five months later, the creditor moved for reinstatement of its claim. The bankruptcy court held a hearing on the motion, but declined to reinstate because (1) the creditor was a sophisticated party which received, but did not act upon, notice of the debtor in possession’s motion to disallow the claim, and (2) a final plan of reorganization had been established before the creditor moved for reinstatement and distributions had been made to creditors. In affirming the bankruptcy court, the court in Brielle Associates held that the bankruptcy court had authority to reconsider disallowed claims under Bankruptcy Rule 307. The court noted that although the rule was based in part on a section of the former Bankruptcy Act not explicitly carried over in the Code (§ 2a(2) granting jurisdiction to reconsider allowed or disallowed claims), the rule was also based on “the ‘ancient and elementary power’ of a referee as a court to reconsider any of his orders.” 685 F.2d at 111, citing In re Pottaseh Bros. Co., 79 F.2d 613, 616-17 (2 Cir.1935) (“(w)hy it is desirable that (the referee’s) orders, ruat coelum, should be as immutable as the Twelve Tablets, once the ink is dry, we cannot understand. . . We hold that the referee has the same power over his orders as the District Judge has over his”). Accordingly, the Third Circuit held that because the “ancient and elementary power” to reconsider “remains untouched by the new Bankruptcy Code,” and because the court was unaware of any legislative history indicating disapproval of Rule 307, it concluded that the Bankruptcy Court had jurisdiction under Rule 307 to reconsider its own order disallowing the creditor’s claim. 685 F.2d at 111-12. We adopt the rule of Brielle Associates and hold that the bankruptcy court has the authority to reconsider a disallowed claim. II. Under what circumstances should a court reconsider a previously disallowed claim? Section 502(j) offers only the standard “for cause.” We" }, { "docid": "12811220", "title": "", "text": "regardless of its failure to serve CDC’s counsel with the Objection, CDC’s inaction with respect to the Objection warrants a denial of any relief from the Order. DISCUSSION A bankruptcy court’s authority to reconsider its previous order disallowing and expunging a claim is found in 11 U.S.C. § 502(j) and Rule 3008. Pursuant to § 502(j), a disallowed claim may be reconsidered for cause. See § 502(j). The term ‘cause’ is not defined in § 502(j) and thus, the application and interpretation of its meaning is “a matter of judicial construction.” See In re Yagow, 62 B.R. 73, 78 (Bankr.D.N.D.1986) (citing Shaw v. Easter (In re Shaw), 25 B.R. 418, 421 (Bankr.S.D.Ohio 1982)). Rule 3008 provides the means for seeking reconsideration as follows: A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order. See Rule 3008. Additional guidelines are also found in Rule 60(b) of Federal Rules of Civil Procedure made applicable to bankruptcy eases by Rule 9024. See Property Damage Claimants Identified on Exhibit “A” v. H.K. Porter Co., Inc. (In re H.K. Porter Co., Inc.), 156 B.R. 149, 150 (Bankr.W.D.Pa.1993). CDC argues that there are two separate bases that would warrant this Court to reconsider the December 10, 1996 order: (1) Debtor’s failure to provide CDC’s counsel with notice of the Objection despite counsel’s specific requests that she be served with such a notice, and (2) CDC’s failure to timely respond to the objection was the result of excusable neglect. I. Failure to Notify CDC Counsel. The subject motion deals with a question which I do not find addressed in the reported cases, namely, whether a debtor, when it seeks to disallow and expunge a proof of claim pursuant to Rule 3007, is required to notify the claimant’s counsel who has filed a notice of appearance and request for service of papers pursuant to Rule 9010. My analysis of the bankruptcy rules leads me to con-elude that the debtor cannot ignore the rights of the creditor which" }, { "docid": "2130104", "title": "", "text": "provides, in part: “A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate . . .” (emphasis added). Section 502(j) provides, in part: “Before a case is closed, a claim that has been allowed may be reconsidered for cause, and reallowed or disallowed according to the equities in the case.” (emphasis added) A transition feature of the 1978 Bankruptcy Reform Act, § 405(d), 28 U.S.C. note prec. § 1471, provides that the Bankruptcy Rules shall continue in effect “to the extent not inconsistent with the amendments made by this Act, or with this Act.... ” Accordingly, the trustee suggests that the adoption of 11 U.S.C. § 502(j) now limits the reconsideration of claims to previously allowed claims. This view is consistent with that of the editors of, the 1981 Collier Pamphlet Edition of the Bankruptcy Rules at page 125. However, a recent opinion of the Third Circuit has specifically rejected appellee’s argument. Brielle Associates v. Graziano, 685 F.2d 109 (3rd Cir.1982). There, on facts substantially similar to the instant case, a claim of the debtor’s prior law firm was objected to. The creditor did not appear at the hearing and the claim was disallowed. Five months later, the creditor moved for reinstatement of its claim. The bankruptcy court held a hearing on the motion, but declined to reinstate because (1) the creditor was a sophisticated party which received, but did not act upon, notice of the debtor in possession’s motion to disallow the claim, and (2) a final plan of reorganization had been established before the creditor moved for reinstatement and distributions had been made to creditors. In affirming the bankruptcy court, the court in Brielle Associates held that the bankruptcy court had authority to reconsider disallowed claims under Bankruptcy Rule 307. The court noted that although the rule was based in part on a section of the former Bankruptcy Act not explicitly carried over in the Code (§ 2a(2) granting jurisdiction to reconsider allowed or disallowed claims), the rule was also based on “the ‘ancient and elementary power’ of a" }, { "docid": "12720543", "title": "", "text": "disallowing a claim against the estate.” “Section 502(j) and Bankruptcy Rule 3008 grant the bankruptcy court the power to reconsider for cause secured claims that previously have been allowed.” In re International Yacht and Tennis, Inc., 922 F.2d 659, 662 (11th Cir.1991). As one court has recognized, however, “[njeither the Bankruptcy Code nor the Bankruptcy Rules define the meaning of ‘cause’ as used in § 502(j).” In re Jones, 2000 WL 33673759, at *2 (Bankr.M.D.N.C.2000); In re Coffman, 271 B.R. 492, 498 (Bankr.N.D.Tex.2002). Reconsideration under § 502(j) is a two-step process. A court must first decide whether “cause” for reconsideration has been shown. Jones, 2000 WL 33673759 *2. Then, the Court decides whether the “equities of the case” dictate allowance or disallowance of the claim. Id.; 11 U.S.C. § 502(j). “Bankruptcy courts have substantial discretion in deciding what constitutes ‘cause’ for reeonsider- ing a claim pursuant to section 502(j).” Coffman, 271 B.R. at 498 (citations omitted); In re Davis, 237 B.R. 177, 181-82 (M.D.Ala.1999). Although “the ‘for cause’ standard ‘is not standardless,’ ” id. (quoting In re Davis, 237 B.R. at 182), there “is considerable variation in the cases concerning the test or standard which should be used.” Jones, 2000 WL 33673759, at *2. Some courts look to when the motion to reconsider was filed in order to determine what standards to use to determine “cause.” These courts generally say that if the motion is filed within ten days, the motion should be governed by Bankruptcy Rule 9023 and Federal Rule of Civil Procedure 59. See, e.g., Jones, 2000 WL 33673759, at *2, n. 1 (citing cases). Other courts hold that where the motion is file outside of ten days, Bankruptcy Rule 9024 and Federal Rule of Civil Procedure 60(b)(1) should govern what is “cause.” Id. Still other courts “[without relying solely upon the timing of the motion for reconsideration ... have debated whether the ‘for cause’ standard under § 502(j) is different from the ‘excusable neglect’ standard of Rule 60(b)(1) and have reached differing conclusions.” Id. In addition, some courts focus on how the claim was initially resolved in" }, { "docid": "16768182", "title": "", "text": "State’s claims. The Bankruptcy Rules do not, however, require assertion of compulsory counterclaims on objection to claims. Bankr.R. 3007, 9014. E. Conclusion Discussion of other defenses raised by the State is unnecessary. Consideration of the parties’ performance under the agreement is obviated by the determination that Debtor is barred from asserting the counterclaim pursuant to equitable estoppel, judicial estoppel and laches. HRP’s amended counterclaim is, therefore, dismissed with prejudice. State’s request for award of fees and costs is denied. II. RELIEF FROM JUDGMENT Pursuant to Rule 60(b)(6), HRP seeks relief from judgment entry of February 22, 1989 overruling objection to Claim No. 72 in HRP(2). Fed.R.Civ.P. 60(b)(6) incorporated pursuant to Bankruptcy Rule 9024. It is also suggested that recourse to this rule is unnecessary and the matter should be considered as a motion for reconsideration of claim pursuant to Section 502(j) of the. Bankruptcy Code. 11 U.S.C. § 502(j). Essentially Debtor requests relief from the judgment maintaining it was submitted by counsel without authority. Section 502(j) provides for reconsideration of an allowed or disallowed claim for cause. “A reconsidered claim may be allowed or disallowed according to the equities of the case.” 11 U.S.C. § 502(j). Reference to Rule 60 of the Federal Rules is appropriate on motions for reconsideration. United States v. Motor Freight Express, 91 B.R. 705 (Bankr.E.D.Pa.1988); Pollack v. Federal Deposit Insurance Corp. (In re Monument Record Corp.) 71 B.R. 853 (Bankr.M.D.Tenn.1987). Rule 60(b)(6) provides for relief for “any other reason justifying relief from the operation of the judgment.” The burden is on HRP as movant to bring itself within the scope of these provisions. Miller v. Owsianowski (In re Salem Mortgage Co.) 791 F.2d 456 (6th Cir.1986). On consideration there is no basis for relief from the judgment entry and thus for reconsideration of allowance of State’s claim. Debtor failed to establish the judgment entry was unauthorized. There is, therefore, no cause for reconsideration pursuant to Section 502(j) and no reason justifying relief under Rule 60(b)(6). Moreover, if Debtor’s allegations regarding the judgment entry were credible, its failure to monitor prosecution of objection to the State’s" }, { "docid": "2130103", "title": "", "text": "The effect of the trial court’s order was to disallow Sentry’s claim to the extent it was unsecured. .. On August 11, 1982 Sentry filed its “Motion for Reconsideration of Trustee’s Objection to Proof of Claim.” The trial court conducted a hearing on the request to reconsider the disallowance of Sentry’s claim on November 17,1982 and denied the motion without formal findings but stating on the record that Sentry failed to present its unsecured claim timely, “... after sitting on it for eight months.” The trial judge was also of the opinion that other creditors would be prejudiced by allowance of Sentry’s claim because their prospective dividend would be reduced. ISSUES ON APPEAL 1. May a claim that has been once disallowed be reconsidered after the time for appeal has past; and 2. If a previously disallowed claim may be reconsidered, did the trial court abuse its discretion in refusing to reconsider the claim? I. At the outset we are met with an inconsistency between 11 U.S.C. § 502(j) and Bankruptcy Rule 307. Rule 307 provides, in part: “A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate . . .” (emphasis added). Section 502(j) provides, in part: “Before a case is closed, a claim that has been allowed may be reconsidered for cause, and reallowed or disallowed according to the equities in the case.” (emphasis added) A transition feature of the 1978 Bankruptcy Reform Act, § 405(d), 28 U.S.C. note prec. § 1471, provides that the Bankruptcy Rules shall continue in effect “to the extent not inconsistent with the amendments made by this Act, or with this Act.... ” Accordingly, the trustee suggests that the adoption of 11 U.S.C. § 502(j) now limits the reconsideration of claims to previously allowed claims. This view is consistent with that of the editors of, the 1981 Collier Pamphlet Edition of the Bankruptcy Rules at page 125. However, a recent opinion of the Third Circuit has specifically rejected appellee’s argument. Brielle Associates v. Graziano, 685 F.2d 109 (3rd Cir.1982). There, on facts substantially similar" }, { "docid": "2130106", "title": "", "text": "referee as a court to reconsider any of his orders.” 685 F.2d at 111, citing In re Pottaseh Bros. Co., 79 F.2d 613, 616-17 (2 Cir.1935) (“(w)hy it is desirable that (the referee’s) orders, ruat coelum, should be as immutable as the Twelve Tablets, once the ink is dry, we cannot understand. . . We hold that the referee has the same power over his orders as the District Judge has over his”). Accordingly, the Third Circuit held that because the “ancient and elementary power” to reconsider “remains untouched by the new Bankruptcy Code,” and because the court was unaware of any legislative history indicating disapproval of Rule 307, it concluded that the Bankruptcy Court had jurisdiction under Rule 307 to reconsider its own order disallowing the creditor’s claim. 685 F.2d at 111-12. We adopt the rule of Brielle Associates and hold that the bankruptcy court has the authority to reconsider a disallowed claim. II. Under what circumstances should a court reconsider a previously disallowed claim? Section 502(j) offers only the standard “for cause.” We find additional guidelines in Bankruptcy Rule 924 which specifically refers to reconsideration of a disallowed claim as follows: Rule 60 of the Federal Rules of Civil Procedure applies in bankruptcy cases, except that a motion to reopen a ease or for the reconsideration of an order allowing or disallowing a claim against the estate entered without contest is not subject to the one-year limitation therein prescribed. Fed. Rule Civ.Pro. 60(b) provides that the court may relieve a party or his attorney from a final judgment or order for a number of reasons including mistake, excusable neglect, fraud, newly discovered evidence, etc. The Ninth Circuit has recently stated a liberal rule of excusable neglect, in a case applying Rule 60 to the decision of a bankruptcy court that refused to allow a late filed complaint to determine dischargeability. In re Magouirk, 693 F.2d 948 (9th Cir. 1982). There, the court held that where the complaint was 25 days late, the motion to permit late filing was timely in that it was filed within one year of" }, { "docid": "12811219", "title": "", "text": "points out that a notice filing under Rule 2002(g) is only with respect to the notices “mailed under this Rule.” See Rule 2002(g). The types of motions which are the subject of the notice requirement in Rule 2002 do not include an objection to a claim. An objection to a claim is governed by Rule 3007 and that Rule states that the mailing shall be delivered to the claimant, the debtor or the debtor in possession and the trustee. Thus, Debtor’s present position is that under Rule 3007, mailing a copy of the Objection to CDC is all that was required and it had no obligation to send another copy to CDC’s counsel, whether or not counsel had made requests for service pursuant to Rules 2002(g) or 9010. (May 19,1997 Tr. 36) Debtor also contends that CDC’s own failure to respond to the Objection was inexcusable since CDC is a sophisticated creditor and when it was timely served with the Objection, CDC should have notified its counsel and sought counsel’s advice. Accordingly, Debtor concludes that regardless of its failure to serve CDC’s counsel with the Objection, CDC’s inaction with respect to the Objection warrants a denial of any relief from the Order. DISCUSSION A bankruptcy court’s authority to reconsider its previous order disallowing and expunging a claim is found in 11 U.S.C. § 502(j) and Rule 3008. Pursuant to § 502(j), a disallowed claim may be reconsidered for cause. See § 502(j). The term ‘cause’ is not defined in § 502(j) and thus, the application and interpretation of its meaning is “a matter of judicial construction.” See In re Yagow, 62 B.R. 73, 78 (Bankr.D.N.D.1986) (citing Shaw v. Easter (In re Shaw), 25 B.R. 418, 421 (Bankr.S.D.Ohio 1982)). Rule 3008 provides the means for seeking reconsideration as follows: A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order. See Rule 3008. Additional guidelines are also found in Rule 60(b) of Federal Rules of Civil Procedure made applicable to bankruptcy" }, { "docid": "12720561", "title": "", "text": "2001, $391.19 on September 17, 2001 and $408.77 on October 16, 2001. . FMCC Exhibit 8 was introduced at the February 27, 2002 hearing. This exhibit — which appears to have been prepared on June 23, 1998 — is a copy of an internal FMCC Bankruptcy Review Report on the Rayborn account. It shows, among other things, that the matter was “assigned to Bill Howell” on June 24, 1998. . FMCC’s motion to reconsider the Court's January 10, 2002 order was filed over 10 days later on January 22, 2002. There is no time limit in Bankruptcy Rule 3008 governing when a motion to reconsider an order allowing or disallowing a claim must be filed. See Fed. R. Bankr.P. 3008. Rule 9023 says that Federal Rule of Civil Procedure 59' — which continues a 10-day limit for filing motions to vacate judgments — governs in cases under the Code \"except as provided in Rule 3008.\" The Advisory Committee Notes to Rule 9023 clearly say that Rule 3008 does not contain a 10 day time limit like Federal Rule of Civil Procedure 59. Moreover, it has been held that a claim may be reconsidered for \"cause” even after confirmation. In re Zieder, 263 B.R. 114, 117 (Bankr.D.Ariz.2001) (citing In re International Yacht & Tennis Inc., 922 F.2d 659, 662 n. 5 (11th Cir.1991)) (other citation omitted). And, debtors do not argue that FMCC's motion is untimely. Furthermore, assuming Rule 9006(f) applies, FMCC had until January 23 to file the motion even if Rule 3008 did have a 10-day limit, which it does not. Thus, there is no issue concerning the timeliness of FMCC's motion. . The Fifth Circuit has “likened the 'cause’ standard found in section 502(j) with the substantive requirements of Bankruptcy Rule 9024 and Rule 60(b) of the Federal Rules of Civil Procedure.” Coffman, 271 B.R. at 498 (citing In re Colley, 814 F.2d 1008, 1010-11 (5th Cir.1987)). The Eleventh Circuit appears to endorse the approach taken by the Fifth Circuit in Colley. See International Yacht & Tennis, 922 F.2d at 662 (citing Colley). .It has been held that" }, { "docid": "15929648", "title": "", "text": "is no deadline to file a § 502(j) motion unless the claim was allowed or disallowed by way of an adversary proceeding or other contested litigation. Here, Daimler’s objection to the Plan was resolved by consent before the Court heard from the parties on the matter. This does not constitute a “contest” for purposes of Rule 9024 and, thus, the Debt- or was free to seek reconsideration of Daimler’s claim at any time. Standard for Reconsideration Section 502© states that a claim may be reconsidered “for cause.” “Cause” is not explicitly defined in the Code or in the Rules, and there is some disagreement among the courts as to its meaning. See In re Watkins, 240 B.R. 735, 739 (Bankr.C.D.Ill.1999). Numerous courts have likened the “cause” standard found in section 502© with the substantive requirements of Bankruptcy Rule 9024 and Rule 60(b) of the Federal Rules of Civil Procedure. See, e.g., In re Colley, 814 F.2d 1008, 1010-1011 (5th Cir.1987); cert. denied, 484 U.S. 898, 108 S.Ct. 234, 98 L.Ed.2d 193 (1987); In re W.F. Hurley, Inc., 612 F.2d 392, 396 n. 4 (8th Cir.1980); Amtech Lighting Servs. Co. v. Payless Cashways (In re Payless Cashways), 230 B.R. 120, 137 (8th Cir. BAP 1999); Watkins, 240 B.R. at 739; In re Southwest Florida Telecomm., 234 B.R. 137,142 (Bankr.M.D.Fla.1998). Rule 60(b) sets forth six grounds for granting relief from a judgment or order: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence by which due diligence could not have been discovered in time to move for a new trial under rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. Application of Rule 60(b) to Section 502(j) has been conditioned by various courts, however, on certain" }, { "docid": "16767529", "title": "", "text": "for the creditor in that situation, as the Alexander court pointed out, is to ask the court to reconsider the allowed secured claim under § 502(j) and include the lien as part of the reconsidered allowed secured claim. As the Eleventh Circuit recently observed, “[s]ection 502(j) and Bankruptcy Rule 3008 grant the bankruptcy court the power to reconsider for cause secured claims that previously have been allowed.” In re International Yacht and Tennis, 922 F.2d 659, 662 (11th Cir.1991). The relevant part of § 502(j) for this proceeding states: A claim that has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed or disallowed according to the equities of the case. Rule 3008 provides the procedure for claim reconsideration under § 502(j). Rule 3008 reads: A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order. The Advisory Committee Notes accompanying Rule 3008 further state that: After reconsideration, the court may allow or disallow the claim, increase or decrease the amount of a prior allowance ... or enter any other appropriate order. (emphasis added). As the above authority points out, the accepted way for PCA to modify a previously allowed secured claim is through the process of claim reconsideration under Rule 3008 and 502(j). The Court believes that the agreement between PCA and the debtor to pay the life insurance proceeds to PCA is an impermissible attempt to increase the amount of PCA’s previously allowed secured claim without following the procedures outlined in the Bankruptcy Code and Rules. The agreement essentially acknowledges PCA’s right to payment in full on $32,754.38 of its unsecured claim, in effect raising that portion of the unsecured claim to secured status. Under the plan PCA already had a $388,079 allowed secured claim that was being paid in full. The agreement added a $32,754.38 payment from the insurance proceeds to that claim without submitting the claim to allowance or approval procedures. To date, PCA has not made any request for" }, { "docid": "208730", "title": "", "text": "and 9023 (formerly 307 and 923), Interim Rule 3001(e) and Federal Rules of Civil Procedure 59(e) and secondly, if there is reconsideration, whether the equities in this case warrant the alteration of the previous order. Handling these questions seriatim, it is the “ancient and elementary power” of a Bankruptcy Court to reconsider any of its orders notwithstanding that an appeal also lies from some of its orders. In re Pottasch Bros. Co., 79 F.2d 613, 616-17 (2d Cir.1935). 11 U.S.C. § 502(j) of the new Bankruptcy Code provides that “before a case is closed, a claim that has been allowed may be reconsidered for cause, and reallowed or disallowed according to the equities of the case”. This section was derived from § 57(k) of the former Bankruptcy Act. Bankruptcy Rule 307 provided that a party may move for reconsideration of an order allowing or disallowing a claim. Bankruptcy Rule 307 was based on 11 U.S.C. § 2a(2) of the former Act which gave the Bankruptcy Court the power to reconsider any of its orders. 11 U.S.C. § 502(j) reenacted the provision of § 57(k) of the old law, but the provisions of § 2a(2) were not reenacted. Under new 28 U.S.C. § 2075, the Supreme Court adopted rules could not abridge, enlarge, or modify any substantive right. Thus, it was argued that Bankruptcy Rule 307 could not permit a Bankruptcy Court to reconsider a disallowed claim because the substantive rule under former § 2(a)(2) had been deleted. Interim Rule 3001(e) which readopted 307 in the context of a Chapter 11 proceeding indicated that the rule was still considered viable. See Brielle Associates v. Graziano, 685 F.2d 109 (3d Cir.1982). The new Bankruptcy Rules became effective to all pending cases August 1, 1983 unless application of such rules would be inequitable. The motion here was first made May 9, 1983 and amended May 25, 1983 but was adjourned and heard September 6, 1983. The new rules adopt former Bankruptcy Rule 307. New Rule 3008 states, “A party in interest may move for reconsideration of an order allowing or disallowing a claim" }, { "docid": "208733", "title": "", "text": "and 9023) and Rule 59(e) of the Federal Rules of Civil Procedure. Rule 9023 (new trials and amendments of judgments) states that Rule 59 of the Federal Rules applies except as provided in Rule 3008 (Reconsideration of Claims). Federal Rule 59(e) states that a motion to alter or amend a judgment shall not be made later than 10 days after its entry. The 10 day limitation which applies to appeals and would stay the time in which to appeal does not apply to reconsideration of claims. The comments to Rule 9023 state that under Federal Rule 59, the motion must be made within 10 days but that no similar time limit is contained in Rule 3008. The comments to Rule 3008 state that whereas 11 U.S.C. § 502(j) permits reconsideration of allowed claims only before a case is closed, no such limitation exists under Rule 3008. Authorities disagree as to whether reconsideration may be had after a case is reopened. The IRS motion was first made here on May 9, 1983 and amended May 25, 1983. There is no extension of time for the United States to move for reconsideration as in the time in which to appeal under Federal Rules of Appellate Procedure (4). Therefore, the motion for reconsideration may come under Rule 3008 which permits it until the closing of the case. The Bankruptcy Rules contemplated the power of the Bankruptcy Court to reconsider its orders, notwithstanding any power of appeal, beyond the 10 day limit. Rule 9024 (Relief From Judgment or Order) adopts Federal Rule 60 in permitting relief from judgment on showing of (1) mistake, excusable neglect, (2) newly discovered evidence, (3) fraud, etc. Rule 60 permits such relief only within a year. Rule 9024 states that a motion to reconsider an order allowing or disallowing a claim made without contest is not subject to the one year limitation. Another Bankruptcy Rule which contemplates reconsideration by the Bankruptcy Court notwithstanding any right of appeal is B.R. 7055 which adopts Federal Rule 55. Federal Rule 55(c) states that for good cause, the Court may set aside the" }, { "docid": "208732", "title": "", "text": "against the estate”. The comments to this section make it clear that the Supreme Court in adopting these rules has adopted the reasoning behind former Bankruptcy Rule 307. “The rule recognizes as did former Bankruptcy Rule 307 the power of the Court to reconsider an order of disallowance on an appropriate motion”. This Court considered a similar situation in In re Sapienza, 27 B.R. 526 (Bkrtcy.W.D.N.Y.1983) affirmed on alternate grounds, WDNY Sept. 29, 1983. In that case, this Court held that 11 U.S.C. § 502(j) of the new Bankruptcy Code would supercede former Bankruptcy Rule 307. However, Sa-pienza was decided before the effective date of the new rules in which the Supreme Court implicitly approved the theory behind Bankruptcy Rule 307. This was also acquiesed in by Congress. Therefore, Rule 3008 does not abridge, enlarge or modify any substantive right under 11 U.S.C. § 2075, and the Bankruptcy Court has the power to reconsider its former order disallowing a claim. The IRS has moved for reconsideration under former Bankruptcy Rule 307 and 923 (currently 3008 and 9023) and Rule 59(e) of the Federal Rules of Civil Procedure. Rule 9023 (new trials and amendments of judgments) states that Rule 59 of the Federal Rules applies except as provided in Rule 3008 (Reconsideration of Claims). Federal Rule 59(e) states that a motion to alter or amend a judgment shall not be made later than 10 days after its entry. The 10 day limitation which applies to appeals and would stay the time in which to appeal does not apply to reconsideration of claims. The comments to Rule 9023 state that under Federal Rule 59, the motion must be made within 10 days but that no similar time limit is contained in Rule 3008. The comments to Rule 3008 state that whereas 11 U.S.C. § 502(j) permits reconsideration of allowed claims only before a case is closed, no such limitation exists under Rule 3008. Authorities disagree as to whether reconsideration may be had after a case is reopened. The IRS motion was first made here on May 9, 1983 and amended May 25," }, { "docid": "5169893", "title": "", "text": "filing a motion to alter or amend, not styled as a motion to reconsider. The Seventh Circuit Court of Appeals has instructed courts to treat all substantive post-judgment motions filed within ten days of judgment under Rule 59. Charles v. Daley, 799 F.2d 343 (7th Cir.1986). Motions made thereafter are considered under the provisions of Rule 60 of the Federal Rules of Civil Procedure, as adopted by Bankruptcy Rule 9024. Because both motions at bar were filed within ten days of the judgment, the procedural standards and authorities construing Rules 59 and 9023 control rather than the inappo-site authorities pursuant to Rules 60 and 9024. Motions made under Rule 59 serve to correct manifest errors of law or fact, or to consider the import of newly discovered evidence. Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557 (7th Cir.1985); Keene Corp. v. International Fidelity Ins. Co., 561 F.Supp. 656 (N.D.Ill.1982), aff'd, 736 F.2d 388 (7th Cir.1984); F/H Industries, Inc. v. National Union Fire Ins. Co., 116 F.R.D. 224, 226 (N.D.Ill.1987). The function of a motion made pursuant to Rule 59(e) is not to serve as a vehicle to relitigate old matters or present the case under a new legal theory. Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986); Evans, Inc. v. Tiffany & Co., 416 F.Supp. 224, 244 (N.D.Ill.1976); In re BNT Terminals, Inc., 125 B.R. 963, 976-977 (Bankr.N.D.Ill.1990). The purpose of a motion to alter or amend “is not to give the moving party another ‘bite at the apple’ by permitting the arguing of issues and procedures that could and should have been raised prior to judgment.” BNT Terminals at 977. “A motion brought under Rule 59(e) is not a procedural folly to be filed by a losing party who simply disagrees with the decision; otherwise, the Court would be inundated with motions from dissatisfied litigants.” Id. Bellwood also seeks relief under section 502(j) and Bankruptcy Rule 3008. Section 502(j) provides in relevant part that “[a] claim that has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed" }, { "docid": "10522170", "title": "", "text": "has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed or disallowed according to equities of the case.” 11 U.S.C. § 502(j); see also Fed.R.Bankr.P. 3008. Reconsideration of a claim may be requested at any time. Employment Sec. Div. v. W.F. Hurley, Inc. (In re W.F. Hurley, Inc.), 612 F.2d 392, 394 (8th Cir.1980); see also United States v. Zieg (In re Zieg), 206 B.R. 974, 978 (D.Neb.1997) (“[A] motion for reconsideration can be filed at any time before the case is closed.”). When a motion to reconsider is made after expiration of the time to appeal, as in this case, it is treated as a motion for relief from judgment under Federal Rule of Bankruptcy Procedure 9024. Abraham v. Aguilar (In re Aguilar), 861 F.2d 873, 874 (5th Cir.1988); S.G. Wilson Co. v. Cleanmaster Indus., Inc. (In re Cleanmaster Indus., Inc.), 106 B.R. 628, 630 (9th Cir. BAP 1989). Rule 9024 provides that Federal Rule of Civil Procedure 60 applies in all bankruptcy eases. Fed.R.Bankr.P. 9024. In essence, then, Rule 60(b) helps to define the term “cause” in § 502(j) and provides the applicable criteria for reconsidering claims. Hurley, 612 F.2d at 396 n. 4; see also Colley v. National Bank of Texas (In re Colley), 814 F.2d 1008, 1010 (5th Cir.1987) (citing Hurley); Cleanmaster, 106 B.R. at 630. In relevant part, Rule 60(b) allows a court to relieve a party from an order for “mistake, inadvertence, surprise or excusable neglect.” Fed.R.Civ.P. 60(b)(1). The parties agree that excusable neglect is the appropriate standard to apply in this circumstance. C. STANDARD OF REVIEW We review the denial of a motion for reconsideration under an abuse of discretion standard. See, e.g., Halverson v. Estate of Cameron (In re Mathiason), 16 F.3d 234, 239 (8th Cir.1994); see also Employment Sec. Div. v. W.F. Hurley, Inc. (In re W.F. Hurley, Inc.), 612 F.2d 392, 396 (8th Cir.1980); Colley v. National Bank of Texas (In re Colley), 814 F.2d 1008, 1010 (5th Cir.1987). An abuse of discretion will only be found if the lower court’s judgment was based" }, { "docid": "208729", "title": "", "text": "of the United States tax claim had to be resolved, and, thus, the delay in the motion objecting to the claim, delayed the confirmation and carrying out of the entire plan. Humphrey states that she had no communication concerning this case after February 17, 1983. She claims she was uninformed about the March 30th adjournment and was informed of the disallowance of the claim on May 4, 1983 when she received a copy of the order. The IRS then furnished a computer printout which adopted the debtor’s amended returns, showing $724 for 1975, $2,188.80 for 1976, and $80.80 for 1977. On May 11, 1983, an amended proof of claim in the total amount of $7,693.03 for the years 1975 through 1977 was filed. The reason for the discrepancy between the computer printout of $2,993.60 and the claim is the addition of penalties and interest. The questions to be considered are first whether the Court has the power to reconsider a disallowed claim in a Chapter 13 proceeding under 11 U.S.C. § 502(j), Bankruptcy, Rules 3008 and 9023 (formerly 307 and 923), Interim Rule 3001(e) and Federal Rules of Civil Procedure 59(e) and secondly, if there is reconsideration, whether the equities in this case warrant the alteration of the previous order. Handling these questions seriatim, it is the “ancient and elementary power” of a Bankruptcy Court to reconsider any of its orders notwithstanding that an appeal also lies from some of its orders. In re Pottasch Bros. Co., 79 F.2d 613, 616-17 (2d Cir.1935). 11 U.S.C. § 502(j) of the new Bankruptcy Code provides that “before a case is closed, a claim that has been allowed may be reconsidered for cause, and reallowed or disallowed according to the equities of the case”. This section was derived from § 57(k) of the former Bankruptcy Act. Bankruptcy Rule 307 provided that a party may move for reconsideration of an order allowing or disallowing a claim. Bankruptcy Rule 307 was based on 11 U.S.C. § 2a(2) of the former Act which gave the Bankruptcy Court the power to reconsider any of its orders. 11" }, { "docid": "208731", "title": "", "text": "U.S.C. § 502(j) reenacted the provision of § 57(k) of the old law, but the provisions of § 2a(2) were not reenacted. Under new 28 U.S.C. § 2075, the Supreme Court adopted rules could not abridge, enlarge, or modify any substantive right. Thus, it was argued that Bankruptcy Rule 307 could not permit a Bankruptcy Court to reconsider a disallowed claim because the substantive rule under former § 2(a)(2) had been deleted. Interim Rule 3001(e) which readopted 307 in the context of a Chapter 11 proceeding indicated that the rule was still considered viable. See Brielle Associates v. Graziano, 685 F.2d 109 (3d Cir.1982). The new Bankruptcy Rules became effective to all pending cases August 1, 1983 unless application of such rules would be inequitable. The motion here was first made May 9, 1983 and amended May 25, 1983 but was adjourned and heard September 6, 1983. The new rules adopt former Bankruptcy Rule 307. New Rule 3008 states, “A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate”. The comments to this section make it clear that the Supreme Court in adopting these rules has adopted the reasoning behind former Bankruptcy Rule 307. “The rule recognizes as did former Bankruptcy Rule 307 the power of the Court to reconsider an order of disallowance on an appropriate motion”. This Court considered a similar situation in In re Sapienza, 27 B.R. 526 (Bkrtcy.W.D.N.Y.1983) affirmed on alternate grounds, WDNY Sept. 29, 1983. In that case, this Court held that 11 U.S.C. § 502(j) of the new Bankruptcy Code would supercede former Bankruptcy Rule 307. However, Sa-pienza was decided before the effective date of the new rules in which the Supreme Court implicitly approved the theory behind Bankruptcy Rule 307. This was also acquiesed in by Congress. Therefore, Rule 3008 does not abridge, enlarge or modify any substantive right under 11 U.S.C. § 2075, and the Bankruptcy Court has the power to reconsider its former order disallowing a claim. The IRS has moved for reconsideration under former Bankruptcy Rule 307 and 923 (currently 3008" } ]

[ { "docid": "15494592", "title": "", "text": "were Hatin and Stancato. Certainly, there was no specific statement made to the district court judge, either in the motion for a continuance or on the day of trial, that the evidence in the Hatin case and appellant’s case involved facts arising out of the same transaction, nor is such assertion made in appellant’s brief. We share the sentiments of the Sixth Circuit that, “whenever avoidable, jurors should not be called to serve in cases involving witnesses or parties who participated in cases in which they were previously impanelled,” United States v. Stevens, 444 F.2d at 632, and we think the better practice here would have been for the court sua sponte to have conducted a searching voir dire of the jury panel as to their service in the Hatin case or allowed defense counsel challenges for cause to the jurors who had sat on that case. See United States v. Tropeano, supra, 476 F.2d 586. Defense counsel, however, also has responsibilities it cannot shirk; the situation, especially in light of the district judge’s remarks, called for a request for challenges for cause and the submission of special voir dire questions to the court. Where there has been no showing that members of the jury panel sat on a prior case involving the same transaction that gave rise to the offense for which defendant was tried, even though they may have participated in a similar case involving the same government witnesses and some of the same evidence, and where those members of the panel who served on the prior case were eliminated from the jury by the exercise of peremptory challenges, we hold that the defendant was not deprived of his right to a fair trial by an impartial jury. We further hold that under these circumstances, viz., the failure of defense counsel to submit special voir dire questions and to request challenges for cause, exhaustion of a defendant’s peremptory challenges in effectively eliminating from the jury those jurors who served in a prior case involving the same government witnesses and some of the same evidence did not violate defendant’s" } ]

[ { "docid": "15297682", "title": "", "text": "the trial court committed reversible error in refusing to quash the jury panels due to jury service ..by the panel members on similar narcotics cases in the interim between selection and commencement of testimony. We have recently had occasion to address the potential deleterious effects which interim jury service may have on the right to trial by a fair and impartial jury in United States v. Mutchler and later in United States v. Jefferson. In Mutchler, testimony commenced nine days after the jury was selected. The defendant’s counsel had exercised each of his peremptory challenges to eliminate jurors who had prior jury experience in narcotics cases. During the nine day interim, nine of the twelve jurors served on one or more similar drug cases. Six of the jurors sat on a similar narcotics case involving the same prosecutor and government witness. The defendants’ motion to quash the jury panel on the basis of interim jury service was denied. The Court, citing United States v. Ledee, 549 F.2d 990, 993 (5th Cir. 1977), first noted that: Peremptory challenges are worthless if trial counsel is not afforded an opportunity to gain the necessary information upon which to base such strikes. 559 F.2d at 958. The Court then reasoned that although the trial court had conducted an adequate inquiry at voir dire to determine the extent of prior jury service, thus affording defense counsel the opportunity to make an informed exercise of peremptory challenges, “Permitting the selected jurors to serve in similar cases prior to appellants’ trial, however, rendered the prior voir dire and peremptory challenges all but meaningless with respect to the issue of similar jury service.” Id. The Court rejected the concept of “collective sanitization”, whereby - the trial court cleanses the effect of the interim service by a series of questions or admonitions addressed to the jury collectively. In the exercise of peremptory challenges, it is essential that the defendant have accurate information concerning prior jury service. United States v. Ochoa, 543 F.2d 564, 566 (5th Cir. 1976); United States v. Montelongo, 507 F.2d 639, 641 (5th Cir. 1975). Interim" }, { "docid": "15494587", "title": "", "text": "(5th Cir. 1977), modified, 566 F.2d 1044 (5th Cir. 1978), the Court held that allowing jurors, already selected for defendants’ trial, to sit on similar prosecutions prior to defendants’, deprived defense counsel of the necessary information for effectively exercising peremptory challenges and required a reversal of the convictions. Applying Mutchler in a subsequent case, the Fifth Circuit held that the district court should have inquired as to other jury service in the seven week period between the time of selection for defendants’ trial and the date trial actually commenced. It remanded for a determination jjf whether any of the jurors had, in fact, sat on a similar case or one involving the same witnesses during the interim period. United States v. Jefferson, 569 F.2d 260 (5th Cir. 1978). This rule was applied again in United States v. Price, 573 F.2d 356 (5th Cir. 1978), and United States v. Garza, 574 F.2d 298 (5th Cir. 1978). United States v. Eldridge, 569 F.2d 319 (5th Cir. 1978), held that an objection to the jury on the basis of interim service was waived because not timely pursued. A review of the cases reveals that the circuit courts, while expressing disapproval of the practices of using jurors who had served in prior similar cases involving the same government witnesses, have been loathe to upset convictions where such use of jurors has occurred. The rule generally followed is that, unless a specific showing of bias or prejudice is made, the fact that a juror sat in a prior case involving the same government witnesses and the same type of crime will not be grounds for disqualification per se unless the defendant is charged with an offense arising from the same transaction. United States v. Jones, 486 F.2d 476 (8th Cir. 1973); United States v. Williams, 484 F.2d 176 (8th Cir. 1973); Johnson v. United States, 484 F.2d 309 (8th Cir. 1973); United States v. Cooper, 332 F.2d 790 (3d Cir. 1964); Casias v. United States, 315 F.2d 614 (10th Cir.), cert. denied, 374 U.S. 845, 83 S.Ct. 1901, 10 L.Ed.2d 1065 (1963). In United States" }, { "docid": "7010931", "title": "", "text": "voir dire to exclude every prospective juror with prior jury service in narcotics cases. In the nine days between selection and trial, however, nine of the twelve jurors sat on one or more similar drug cases. The district judge asked the jurors collectively whether the interim service had biased them, and after a negative reply, denied the defense motion to quash the panel. We reversed. The Court reasoned that permitting designated jurors to sit on similar prosecutions in the interim between selection and trial deprives defense counsel’s prior peremptory challenges of meaning by depriving “counsel of ‘necessary information’ upon which to base an effective exercise of peremptory challenges.” 559 F.2d at 958. We therefore prohibited interim jury service, holding that “once a jury is struck, the designates cannot serve prior to trial in other cases similar in fact and in legal issue or in cases in which the same government witnesses testify.” Id. at 960. The case sub judice differs somewhat from Mutchler. Counsel for Jefferson did not inquire into prior jury service at voir dire when the jury was selected, nor does it appear from the record that he exercised any peremptory challenges to exclude potential jurors with prior service. Despite Mutchler’s rationale based on the right to exercise peremptory challenges, we do not find Jefferson’s counsel’s failure to exercise those challenges at voir dire to be material in this case. Mutchler establishes that jurors with interim service in similar cases may be challenged for cause. The defendant there was described as having exhausted his peremptory challenges, yet this Court reversed the conviction, holding that the trial court should have granted the motion to quash the panel, which in effect would allow a challenge for cause. Also, the Mutchler opinion indicates one remedy for the problem created by interim jury service would be a flat prohibition on service by jurors in similar cases once they are selected. That prohibition would not turn on the availability of peremptory challenges. The suggestion implies that a challenge for cause is at stake. The reason for Mutchler’s hard and fast rule goes beyond" }, { "docid": "3507629", "title": "", "text": "WINTER, Circuit Judge: Joseph H. Donovan appeals from an order of the district court denying him a writ of habeas corpus to set aside his conviction on a charge of attempted rape. Because we conclude that Donovan was denied his right to trial by an impartial jury, we reverse and direct that the writ be issued unless the state affords him a new trial. I. On March 6, 1972, Donovan was tried before a jury in the Circuit Court of Rock-ingham County, Virginia on a charge of unauthorized use of a motor vehicle alleged to have occurred on or about November 14, 1971. The jury returned a verdict of not guilty after full trial. One week later, Donovan was again brought to trial in the same court on a charge of attempted rape of his first cousin which was alleged to have taken place on October 27, 1971. Immediately prior to the second trial, defense counsel moved to quash the jury ve-nire. The motion was based upon the fact that “several” panel members had previously served on the jury which acquitted Donovan of the automobile charge. The circuit court denied this motion, although it stated that it would safeguard Donovan’s rights by admonishing the jury that their participation in another case should not prejudice them against the accused. When the names of prospective jurors were called, the trial judge informed them that Donovan had recently been tried for another offense, and that some of their number had served as jurors in that case. The panel was then asked whether any individual member was influenced by exposure to the earlier trial. None of the panel members responded, and the venire was turned over to defense counsel for further challenges. Defense counsel repeated his challenge to jurors who had sat in the previous case, but he was again overruled. Of the twelve jurors selected, seven had served in the automobile case. Before the jury retired to consider its verdict in the second case, the members were admonished to wipe from their recollections any impressions that they might have gotten from the first" }, { "docid": "23580687", "title": "", "text": "in narcotics cases. Defense counsel eliminated each by peremptory challenge. The court instructed the selected panel to report for trial February 4, 1975, later changed to February 5. Between selection and trial date nine of those jurors sat on cases similar to that against appellants. Four of the jurors sat on a similar marijuana prosecution February 3. Six, including one of the February 3 jurors, sat on another such case February 4, the day before appellant’s trial. At both the February 4 trial and that of appellants the same prosecutor conducted the government’s case; one government witness appeared in both. Appellant’s case and the trials conducted on February 3 and February 4 were very similar factually, each involving marijuana discovered during a Border Patrol checkpoint search of a vehicle. Each involved similar jury instructions. Each resulted in guilty verdicts. On the date the jurors returned to court for appellants’ trial, the defendants moved to quash the panel on the basis of this interim jury service. The district judge then made the following inquiry of the jurors collectively: “Now, some of you on this panel have already recently served on other juries in criminal cases in this court. ' It is probable that some of the witnesses that you have heard in these prior cases will testify before you in this court in this case. The charge will be the same, as the charges in the prior cases that you have heard. And, as I said, the witnesses may very well be some of the same people, some of the same Government witnesses will be testifying here that have testified previously. This being the situation, I want to ask you if any of you feel that because of your prior jury service recently in other cases of similar kind that you will not be able to serve as fair and impartial jurors in this case and base your verdict on the testimony in this case alone without letting anything in connection with the previous cases interfere in any way with you doing that? Do any of you feel like the fact" }, { "docid": "8713549", "title": "", "text": "PER CURIAM: Appellants Swanson and Williams were convicted of aiding and abetting in the distribution of heroin. On appeal both appellants argue that they were denied an impartial jury in that it was the seventh consecutive jury that had been selected from the same jury panel to decide drug cases involving the same government witnesses. In addition, Swanson contends the District Court erred in refusing to submit any cautionary instructions regarding “the various considerations a jury ought to give before crediting an extra judicial statement.” Williams also complains that the court erred in permitting the prosecutor to elicit testimony that Williams had been read Miranda warnings. We reject each of these claims and affirm the convictions. Appellants’ trial began on January 17, 1973. Prior to selection of the jury on that day, appellants and their counsel met in the trial judge’s chambers to discuss certain aspects of the trial. It was first agreed that the defendants would have only ten peremptory challenges together rather than ten such challenges each. At this point Williams’ counsel moved for a continuance to a subsequent jury term because some sixteen of the thirty-two jurors, including alternates, on the panel had previously served on one or more of the juries that had heard and decided six consecutive drug cases that term, at which substantially the same government witnesses who were to testify against Swanson and Williams had given testimony. Four of the trials resulted in verdicts of guilty, one ended in a verdict of not guilty and one resulted in dismissal. The District Court overruled the motion as premature; no showing of prejudice had been made at that time. The Court subsequently conducted a voir dire and asked the following questions on the subject of the prospective jurors’ prior exposure to the same government witnesses: “The mere fact that you served on those juries, heard that evidence, is there anything about that that would make it difficult for you to keep a fair, open and impartial mind ? “You listen to the evidence in this case. Every case is different. “Would anyone have any difficulty," }, { "docid": "23471793", "title": "", "text": "in similar prosecutions after they were impaneled but before the accused’s trial commenced (“interim service”). In Mutchler, a drug offense case, “ten prospective jurors had prior experience in narcotics cases,” and, “[b]etween selection and trial date nine of those jurors sat on cases similar to that against appellants”; one juror had served on two drug cases; and some jurors had heard earlier cases involving the same prosecutor and government witness who were involved in the appellants’ case. Mutchler, supra, 559 F.2d at 957. Unlike prior jury experience, interim service “rendered the prior voir dire [by appellant about previous jury service] and peremptory challenges all but meaningless with respect to the issue of similar jury experience.” Id. at 958. Consequently, “once a jury is struck, the designates cannot serve prior to trial in other cases similar in fact and in legal issue or in cases in which the same government witnesses testify.” Id. at 960. Mutchler stated this rule did not apply to prior jury experience. Id. n. 2 (renumbered as note 3 by 566 F.2d 1044). Ponce argues that the prior service involved in his case is closely analogous to the interim service at issue in Mutchler and is unlike prior service occurring at a time more distant from the trial. Although Jefferson did state that “[i]nterim service is more proximate in time and so creates a heightened danger of prejudice, which is especially great when the offenses are similar or the witnesses the same,” Jefferson, supra, at 262, it is clear that the effectiveness of a defendant’s voir dire of the jury on the issue of prejudice was the pivotal factor in Mutchler. The transcript of the voir dire proceedings in the instant case discloses that an unusually high number of the prospective jurors had prior jury experience, but that only two of the jurors finally seated had previously served together on one jury, and that those two jurors had served in a parole violation case, not in a controlled substances case. Furthermore, none of the jurors seated in the instant case had served in cases involving appearances by" }, { "docid": "15494588", "title": "", "text": "of interim service was waived because not timely pursued. A review of the cases reveals that the circuit courts, while expressing disapproval of the practices of using jurors who had served in prior similar cases involving the same government witnesses, have been loathe to upset convictions where such use of jurors has occurred. The rule generally followed is that, unless a specific showing of bias or prejudice is made, the fact that a juror sat in a prior case involving the same government witnesses and the same type of crime will not be grounds for disqualification per se unless the defendant is charged with an offense arising from the same transaction. United States v. Jones, 486 F.2d 476 (8th Cir. 1973); United States v. Williams, 484 F.2d 176 (8th Cir. 1973); Johnson v. United States, 484 F.2d 309 (8th Cir. 1973); United States v. Cooper, 332 F.2d 790 (3d Cir. 1964); Casias v. United States, 315 F.2d 614 (10th Cir.), cert. denied, 374 U.S. 845, 83 S.Ct. 1901, 10 L.Ed.2d 1065 (1963). In United States v. DeMet, 486 F.2d 816, 819 (7th Cir. 1973), the court stated: “Mere service on another jury confronted with similar charges and similar facts is not, even where some of government witnesses are the same, the type of experience from which the law will infer bias.” See also United States v. Haynes, 398 F.2d 980, 983—986 (2d Cir. 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 124 (1969), in which the Court held: “We decline to find that the 7 jurors who sat in appellant’s trial and who had been jurors in previous narcotics cases where the same government witnesses had testified were prejudiced jurors as a matter of law.” Id. at 985-986. Another case of significance is United States v. Stevens, 444 F.2d 630, 631-632 (6th Cir. 1971), in which appellant, although fully aware of the situation, had failed to object to the service of jurors who had watched or participated as jurors in the trial which resulted in the conviction of his employer stemming from the same set of factual" }, { "docid": "15494582", "title": "", "text": "on it of jurors who had sat on the prior case, and whether the exhaustion of peremptory challenges in eliminating those jurors from appellant’s case amounted to a violation of appellant’s right to the use of jury challenges. About two and one-half weeks prior to trial, appellant filed a motion for a continuance. In support of that motion, he stated that the jury panel from which his jurors would be selected contained fourteen individuals who had sat as jurors in the case of United States v. Hatin and Stancato, and that testimony in the Hatin case referred to the Covered Wagon Lounge which would be referred to in his case by the same government witnesses who testified in the Hatin case. The motion for continuance further asserted that eleven additional jurors were selected for service on the panel in the Hatin case, but were challenged by either the government or defense counsel and that those jurors would be part of appellant’s jury panel. Although the government agrees with appellant that the issue was clearly raised by appellant’s motion for a continuance prior to trial, the statement of the district judge at the outset of the case does not show that he understood fully that defense counsel was asserting that some of the evidence would be the same and that the chief government witnesses would be the same. THE COURT: There was a motion filed by William Carranza about two and a half weeks ago to have this case continue on the basis that there would be the same jury panel that heard another case similar to this case apparently. The case has since been continued.[ ] It was continued at the request of Attorney Silver-man on behalf of the defendant, James Brown, and Mr. Silverman had just come into the case. Since that time there have been other cases in this court where there have been acquittals reached by the jury on firearms cases. There was a ease last week where there were certain acquittals on various counts. This is a combination of those jurors. I think this would be" }, { "docid": "15494590", "title": "", "text": "circumstances. The court noted that no continuance was requested and that appellant did not exhaust his peremptory challenges. In finding no prejudicial error, the court stated: We express our disapproval of the practice of permitting prospective jurors to witness trials in progress because of the risk of exposure to disclosures which might affect their impartiality if empan-elled to try other cases. We also believe that, whenever avoidable, jurors should not be called to serve in cases involving witnesses or parties who participated in cases in which they were previously im-panelled. In United States v. Williams, supra, 484 F.2d 176 the court affirmed the conviction resulting from a trial in which some of the jurors had served in prior trials in which convictions had been obtained on the testimony of the same government witnesses as in appellant’s trial. Like our case, appellant’s attorney had moved for a continuance prior to trial, but had not made specific challenges for cause. But unlike the case at bar, the district court conducted a voir dire and asked the jurors if their sitting on the prior cases and hearing the same witnesses would make it difficult for them. The court did state: “[W]e do not endorse the procedure followed here as being preferred or the most desirable. Still we cannot say that its use is reversible error.” Id. at 178. United States v. Drake, 494 F.2d 648 (7th Cir. 1974) concerned a challenge to the jury panel because of their exposure to the prosecutor and the number and type of cases heard by the panel. In rejecting the challenge, the court stated: “We think that defendant’s concern could have been remedied by questions during the voir dire examination since that is the appropriate time to ascertain the prospective jurors’ ability to render a fair and impartial verdict.” Id. at 649. Here, we do not know whether the Hatin case involved the same transaction or not. The allegation in the motion that there would be evidence as to the Covered Wagon Lounge cannot be stretched to mean that appellant was involved in the same transaction as" }, { "docid": "23471792", "title": "", "text": "served in another similar case in the period between voir dire and the beginning of trial. In this case, however, jury selection began on the afternoon of March 17, 1986, and the case proceeded speedily through trial, with the jury retiring to deliberate on the morning of March 19. Ponce does not claim that any interim service occurred, but he contends that some of the factors examined in those cases support creating a right to challenge for cause jurors who, in the past, have served together, or to quash a panel with an unusual amount of recent prior jury service. He asks that United States v. Mutchler, 559 F.2d 955, 959 (5th Cir.1977), discussed in United States v. Jefferson, 569 F.2d 260, 262 (5th Cir.1978), be extended to these facts. We note that the Mutchler opinion was carefully narrowed in a subsequent opinion, 566 F.2d 1044 (5th Cir.1978) (per curiam) (modifying the Mutchler opinion reported at 559 F.2d 955). Mutchler (as modified) held that challenges for cause were proper if the challenged jurors had served in similar prosecutions after they were impaneled but before the accused’s trial commenced (“interim service”). In Mutchler, a drug offense case, “ten prospective jurors had prior experience in narcotics cases,” and, “[b]etween selection and trial date nine of those jurors sat on cases similar to that against appellants”; one juror had served on two drug cases; and some jurors had heard earlier cases involving the same prosecutor and government witness who were involved in the appellants’ case. Mutchler, supra, 559 F.2d at 957. Unlike prior jury experience, interim service “rendered the prior voir dire [by appellant about previous jury service] and peremptory challenges all but meaningless with respect to the issue of similar jury experience.” Id. at 958. Consequently, “once a jury is struck, the designates cannot serve prior to trial in other cases similar in fact and in legal issue or in cases in which the same government witnesses testify.” Id. at 960. Mutchler stated this rule did not apply to prior jury experience. Id. n. 2 (renumbered as note 3 by 566 F.2d" }, { "docid": "5923759", "title": "", "text": "transcript of the trial indicate any instance where a juror complained of an inability to follow the proceedings. Moreover, no defense lawyer suggested to the judge that any juror appeared to have problems. Indeed, the selection process was routine with the court posing a number of questions and jurors responding correctly, demonstrating an adequate command of English. News reports are too thin a basis to challenge jury competence. IV. MISTRIAL Appellants allege that the denial of a declaration of a mistrial was reversible error. Below, appellants filed motions for mistrial on the ground that three of the jurors had concealed their prior service in a criminal case in which Viera had testified. In addition, the defense faulted the government for not advising the judge of the jurors' prior experience noting that the prosecutors in this case were the same ones who represented the government in the previous case in which Viera had testified. We are reluctant to upset convictions where defendant or counsel failed to make the necessary inquiry during voir dire and objected after testimony started. United States v. Tropeano, 476 F.2d 586 (1st Cir.1973). Jurors cannot be faulted for failing to disclose their previous service since they were never asked during the course of voir dire to make such a disclosure. Moreover, appellants acknowledge that some of the defendants' counsel knew or ought to have known that three jurors had served in previous cases involving Viera. \"A sentient defendant, knowledgeable of a possible claim of juror bias, waives the claim if he elects not to raise it promptly.\" United States v. Uribe, 890 F.2d 554, 560 (1st Cir.1989). It would have been simple to request the court to inquire whether the prospective jurors had sat before. \"A defendant seeking a new trial because of nondisclosure by a juror must demonstrate actual prejudice or bias.\" United States v. Rivera-Solá, 713 F.2d 866, 874 (1st Cir.1983) (citing United States v. Vargas, 606 F.2d 341, 344 (1st Cir.1979)). In this case the matter was dropped as soon as the mistrial was denied. Appellants did not modify their claim for relief, seek" }, { "docid": "23580685", "title": "", "text": "GOLDBERG, Circuit Judge. On January 26, 1976, defense counsel and the prosecutor selected a jury to try appellants on charges of possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Following a trial on February 5-6, 1976, that jury returned guilty verdicts against both appellants. During the nine days between jury selection and trial, nine of the twelve jurors sat on one or more similar drug cases. One of those cases involved the same prosecutor and a government witness that participated in appellants’ trial. Because the jurors’ interim service robbed defense counsel’s prior peremptory challenges of meaning, we must reverse the convictions. I. The trial we review today is the second appellants have faced on these charges. A related jury selection problem tainted the earlier proceedings against appellants. This court reversed appellants’ original convictions, quoting from United States v. Montelongo, 507 F.2d 639, 641 (5th Cir. 1975): We think that the district court erred in denying the motions to quash the jury panel without allowing counsel for the defendants any opportunity to develop the nature and extent of the prior jury service of the twenty-seven members of the panel who had had prior jury service in narcotics cases. United States v. Mutchler, No. 74-1536, 5th Cir., August 7, 1975 (unpublished per curiam). We remanded the case to the United States District Court for the Southern District of Texas, Corpus Christi Division. The district court set January 26,1976, as the jury selection date for the retrial. Pursuant to the practice in that division, jury selection for several other cases took place on that date. The judge conducted the voir dire examination of prospective jurors for appellants’ trial. Appellants previously had requested in writing that certain questions be asked at the voir dire. At the conclusion of the judge’s examination, in which he had incorporated some of the requested questions, he asked counsel for both sides if they felt he had omitted any important areas of inquiry. Defense counsel raised the subject of prior similar jury service. Subsequent inquiry disclosed that ten prospective jurors had prior jury experience" }, { "docid": "15108327", "title": "", "text": "of the remaining twelve jurors had already been chosen to serve on the jury panel in the case slated for trial immediately before Mobley’s. Mobley’s counsel, who also represented the defendant in this case, moved for a continuance in this other case in an effort to avoid the problem of overlapping jurors; however, his request was denied. At the opening of Mobley’s trial on September 18, 1980, Mobley’s counsel renewed his objection to the jurors on the Mobley panel who had served on the jury in the case tried on the preceding day. The trial court reasoning that “[t]he fact that the jurors have sat and heard the government’s witnesses in one case doesn’t mean they can’t believe the defendant or the defendant’s evidence in another case . ..,” overruled the objection. Later the same day, the jury returned a guilty verdict. On appeal, Mobley argues that our decision in United States v. Jefferson, 569 F.2d 260 (5th Cir. 1978), establishes that the trial judge erred in overruling his objection to the jurors who had served on a similar case in the interim between their selection for Mobley’s jury and the commencement of his trial and mandates the reversal of his conviction. We agree. Jefferson makes clear that jurors who, in the interim between their selection as jurors for a particular case, serve as jurors in similar cases may be challenged for cause. Id. at 262. The Jefferson rule distinguishes the situation in which jurors have “interim” service from cases in which jurors, prior to their selection as jurors for a particular case, served on a jury in a similar case. In this latter situation, although counsel is entitled to develop on voir dire information concerning the nature of a prospective jur- or’s previous jury service, United States v. Montelongo, 507 F.2d 639, 641 (5th Cir. 1975), such prior service, even in similar cases during the same term of court, cannot support a challenge for cause unless it can be shown that such prior service actually biased the prospective juror. United States v. Riebschlaeger, 528 F.2d 1031, 1032-33 (5th Cir.)," }, { "docid": "15494589", "title": "", "text": "v. DeMet, 486 F.2d 816, 819 (7th Cir. 1973), the court stated: “Mere service on another jury confronted with similar charges and similar facts is not, even where some of government witnesses are the same, the type of experience from which the law will infer bias.” See also United States v. Haynes, 398 F.2d 980, 983—986 (2d Cir. 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 124 (1969), in which the Court held: “We decline to find that the 7 jurors who sat in appellant’s trial and who had been jurors in previous narcotics cases where the same government witnesses had testified were prejudiced jurors as a matter of law.” Id. at 985-986. Another case of significance is United States v. Stevens, 444 F.2d 630, 631-632 (6th Cir. 1971), in which appellant, although fully aware of the situation, had failed to object to the service of jurors who had watched or participated as jurors in the trial which resulted in the conviction of his employer stemming from the same set of factual circumstances. The court noted that no continuance was requested and that appellant did not exhaust his peremptory challenges. In finding no prejudicial error, the court stated: We express our disapproval of the practice of permitting prospective jurors to witness trials in progress because of the risk of exposure to disclosures which might affect their impartiality if empan-elled to try other cases. We also believe that, whenever avoidable, jurors should not be called to serve in cases involving witnesses or parties who participated in cases in which they were previously im-panelled. In United States v. Williams, supra, 484 F.2d 176 the court affirmed the conviction resulting from a trial in which some of the jurors had served in prior trials in which convictions had been obtained on the testimony of the same government witnesses as in appellant’s trial. Like our case, appellant’s attorney had moved for a continuance prior to trial, but had not made specific challenges for cause. But unlike the case at bar, the district court conducted a voir dire and asked the jurors" }, { "docid": "7010930", "title": "", "text": "(5th Cir.), cert. denied, 360 U.S. 920, 79 S.Ct. 1439, 3 L.Ed.2d 1535 (1959). The references to “relevance” indicate that these decisions apparently were predicated on the fact that prior service was not a basis for a challenge for cause. In United States v. Montelongo, 507 F.2d 639, 641 (5th Cir. 1975), we recognized that prior service is often considered by counsel when exercising peremptory challenges. We therefore held that counsel is entitled to develop on voir dire some information regarding the nature and extent of prospective jurors’ prior jury service. We reaffirmed Montelongo in United States v. Ochoa, 543 F.2d 564, 566 (5th Cir. 1976), and also in United States v. Mutchler, supra, 559 F.2d at 957. In United States v. Mutchler, supra, we were faced for the first time with the issue of interim jury service, that is, jury service during the period between selection as a juror in defendant’s trial and the commencement of defendant’s trial. In Mutch-ler, a marijuana case, the defendant had used all ten of his peremptory challenges at voir dire to exclude every prospective juror with prior jury service in narcotics cases. In the nine days between selection and trial, however, nine of the twelve jurors sat on one or more similar drug cases. The district judge asked the jurors collectively whether the interim service had biased them, and after a negative reply, denied the defense motion to quash the panel. We reversed. The Court reasoned that permitting designated jurors to sit on similar prosecutions in the interim between selection and trial deprives defense counsel’s prior peremptory challenges of meaning by depriving “counsel of ‘necessary information’ upon which to base an effective exercise of peremptory challenges.” 559 F.2d at 958. We therefore prohibited interim jury service, holding that “once a jury is struck, the designates cannot serve prior to trial in other cases similar in fact and in legal issue or in cases in which the same government witnesses testify.” Id. at 960. The case sub judice differs somewhat from Mutchler. Counsel for Jefferson did not inquire into prior jury service at voir" }, { "docid": "15494581", "title": "", "text": "BOWNES, Circuit Judge. Defendant-appellant, William Carranza, was one of a number of persons arrested in the Western Massachusetts and Boston areas at about the same time as part of a general crackdown on violations of federal firearms laws. He and three others were subsequently indicted and tried together. The jury returned a conviction against appellant for violations of 26 U.S.C. §§ 5841, 5861(d), 5812, 6861(e), and 18 U.S.C. § 922(a)(1) and (2). The only issue on appeal is whether appellant was denied his constitutional right to a fair trial because members of the jury panel from which the jurors were selected had sat on a prior case in which the chief government witnesses were the same and some of the evidence was the same as in his trial. No claim is made that any of the jurors from the prior case actually sat at appellant’s trial. Those jurors were challenged, but, in so doing, appellant used all his peremptory challenges. There are, therefore, two questions: whether the jury panel was impermissibly tainted by the presence on it of jurors who had sat on the prior case, and whether the exhaustion of peremptory challenges in eliminating those jurors from appellant’s case amounted to a violation of appellant’s right to the use of jury challenges. About two and one-half weeks prior to trial, appellant filed a motion for a continuance. In support of that motion, he stated that the jury panel from which his jurors would be selected contained fourteen individuals who had sat as jurors in the case of United States v. Hatin and Stancato, and that testimony in the Hatin case referred to the Covered Wagon Lounge which would be referred to in his case by the same government witnesses who testified in the Hatin case. The motion for continuance further asserted that eleven additional jurors were selected for service on the panel in the Hatin case, but were challenged by either the government or defense counsel and that those jurors would be part of appellant’s jury panel. Although the government agrees with appellant that the issue was clearly raised" }, { "docid": "15987537", "title": "", "text": "Government had a car registration in appellant’s name for the vehicle Salinas was driving when apprehended. Salinas also told the officers his friend was in the Navy. The court ruled appellant’s true name would have been linked to his physical characteristics without the use of the identification cards. During voir dire of the jury, appellant’s counsel learned that certain of the jurors, because of prior jury service that term, had heard some of the same witnesses and the same prosecutor at other trials. Appellant sought unsuccessfully to inquire if they had found anyone guilty. He also sought to challenge them for cause. This request was also denied. Though initially denied, a question whether the jurors might have a predisposition to believe witnesses previously seen was later permitted. Limitation of Voir Dire Appellant’s challenges for cause were based on alleged bias because of previous jury service. No specific bias was alleged as to any particular juror. Appellant relies on United States v. Montelongo, 507 F.2d 639 (5th Cir. 1975), for the proposition that the trial court must allow defense counsel to develop the nature and extent of the prior jury service of members of the jury panel. Appellant also asserts the applicability of Casias v. United States, 315 F.2d 614 (10th Cir. 1963), in which the dissent argues a concept of implied bias of jurors who have sat on previous similar drug cases during the same term of court. Montelongo concerns limitation of voir dire questions to preclude “any opportunity to develop the nature and extent of the prior jury service of . the panel . .” 507 F.2d, at 639. It does not control here, where the court made all inquiries requested by defense counsel except whether “they have found people guilty based upon these witnesses’ testimony.” In United States v. Riebschlaeger, 528 F.2d 1031 (5th Cir. 1976), we rejected the Casias theory and held that general allegations of bias and prejudice based on previous jury service in similar cases are insufficient grounds for challenging jurors. The trial court has broad discretion in controlling the manner and scope of voir" }, { "docid": "8713550", "title": "", "text": "for a continuance to a subsequent jury term because some sixteen of the thirty-two jurors, including alternates, on the panel had previously served on one or more of the juries that had heard and decided six consecutive drug cases that term, at which substantially the same government witnesses who were to testify against Swanson and Williams had given testimony. Four of the trials resulted in verdicts of guilty, one ended in a verdict of not guilty and one resulted in dismissal. The District Court overruled the motion as premature; no showing of prejudice had been made at that time. The Court subsequently conducted a voir dire and asked the following questions on the subject of the prospective jurors’ prior exposure to the same government witnesses: “The mere fact that you served on those juries, heard that evidence, is there anything about that that would make it difficult for you to keep a fair, open and impartial mind ? “You listen to the evidence in this case. Every case is different. “Would anyone have any difficulty, even though some of the witnesses might be the same witnesses put on by the Government that you heard in other cases? Would it make it difficult for you ?” No juror indicated that he had formed an opinion or that he could not be impartial. Neither Swanson nor Williams challenged any member of the panel for cause; nor did either interrogate the panel or any member of it as to any prejudice arising from their sitting in other drug cases or hearing the same witnesses; nor did either appellant move for a continuance or renew the motion Williams had made earlier in chambers. There is no indication that any juror was actually biased. Indeed, Swanson and Williams not only failed to inquire of the panel as to prejudice resulting from the other trials but they forewent any challenges for cause and gave up ten peremptory challenges between them. This action hardly indicates that there is any substance to the prejudice claim. At the most the challenge must rest entirely on a per se theory" }, { "docid": "23580686", "title": "", "text": "to develop the nature and extent of the prior jury service of the twenty-seven members of the panel who had had prior jury service in narcotics cases. United States v. Mutchler, No. 74-1536, 5th Cir., August 7, 1975 (unpublished per curiam). We remanded the case to the United States District Court for the Southern District of Texas, Corpus Christi Division. The district court set January 26,1976, as the jury selection date for the retrial. Pursuant to the practice in that division, jury selection for several other cases took place on that date. The judge conducted the voir dire examination of prospective jurors for appellants’ trial. Appellants previously had requested in writing that certain questions be asked at the voir dire. At the conclusion of the judge’s examination, in which he had incorporated some of the requested questions, he asked counsel for both sides if they felt he had omitted any important areas of inquiry. Defense counsel raised the subject of prior similar jury service. Subsequent inquiry disclosed that ten prospective jurors had prior jury experience in narcotics cases. Defense counsel eliminated each by peremptory challenge. The court instructed the selected panel to report for trial February 4, 1975, later changed to February 5. Between selection and trial date nine of those jurors sat on cases similar to that against appellants. Four of the jurors sat on a similar marijuana prosecution February 3. Six, including one of the February 3 jurors, sat on another such case February 4, the day before appellant’s trial. At both the February 4 trial and that of appellants the same prosecutor conducted the government’s case; one government witness appeared in both. Appellant’s case and the trials conducted on February 3 and February 4 were very similar factually, each involving marijuana discovered during a Border Patrol checkpoint search of a vehicle. Each involved similar jury instructions. Each resulted in guilty verdicts. On the date the jurors returned to court for appellants’ trial, the defendants moved to quash the panel on the basis of this interim jury service. The district judge then made the following inquiry of the" } ]

[ { "docid": "11397070", "title": "", "text": "the federal firearms charge, the federal charge is to be overturned as well. See, e. g., United States v. Lufman, 457 F.2d 165 (7th Cir. 1972); United States v. DuShane, 435 F.2d 187 (2nd Cir. 1970). There is, however, a contrary approach which applies the rule that once one is convicted of a felony he is within the proscription against possession of firearms until that prior conviction is actually overturned or expunged. United States v. Liles, 432 F.2d 18 (9th Cir. 1970). Liles, a convicted felon, was subsequently tried and convicted of possessing a firearm. The court affirmed his conviction for the federal firearm violation notwithstanding the fact that the prior conviction, which was an essential element of the firearms conviction, was reversed one day before he was convicted of the firearms offense. It was there held that Liles’ possession of the revolver was unlawful for one of his status at the time he possessed it. It was not made lawful by the subsequent reversal of his prior felony conviction. We approve and adopt the Liles holding. In our view, this rule embraces the spirit and purpose of the Gun Control Act of 1968. The overriding concern expressed in the legislative history of that Act reveals that possession of firearms should be carefully limited to those persons who are responsible and law-abiding. 1968 U.S.Cong. Ad. News at 2112, 2163-2169. We are further persuaded by United States v. Graves, 554 F.2d 65 (3rd Cir. 1977). There the Court, sitting en banc, held that an underlying prior conviction will apply in a federal firearm prosecution if it has not been challenged on appeal or by collateral attack: To ascertain whether Congress intended that an outstanding felony conviction could lead to liability under the firearms statutes, even though a defendant asserts (constitutional) flaws in the prior conviction, we must examine those materials which may afford insight into Congressional intent: (a) the language of the statutes, (b) the legislative history, and (c) the opinions of other courts which have endeavored to interpret the statutes. These materials suggest that the legislative draftsmen desired persons with" } ]

[ { "docid": "9783245", "title": "", "text": "shall be unlawful for any person ... who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. 18 U.S.C. § 922(g)(1). Under the Firearm Owners’ Protection Act of 1986 (FOPA), the determination of whether someone has in fact been convicted of a crime punishable by more than a year in prison is governed by the law of the jurisdiction in which the criminal proceeding took place (the “choice-of-law clause”). 18 U.S.C. § 921(a)(20). In addition, § 921(a)(20) provides: Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms [the “exemption clause”]. It is well-established that the federal firearms statute “prohibits a felon from possessing a firearm despite the fact that the predicate felony may be subject to collateral attack on constitutional grounds.” Lewis v. United States, 445 U.S. 55, 65, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (construing 18 U.S.C. § 1202(a)(1), a predecessor to the current § 922(g)(1)). See also United States v. Dorsch, 363 F.3d 784, 787 (8th Cir.2004) (affirming applicability of Lewis to current § 922(g)(1)); accord United States v. Snyder, 235 F.3d 42, 52-53 (1st Cir.2000), cert. denied, 532 U.S. 1057, 121 S.Ct. 2205, 149 L.Ed.2d 1034 (2001); United States v. Emerson, 270 F.3d 203, 213 (5th Cir.2001), cert. denied, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 184 (2002). The Lewis majority rejected the petitioner’s challenge to the use of his uncounseled state felony conviction as the basis for the federal prosecution, concluding that “[t]he statutory language is sweeping, and its plain meaning is that the fact of a felony conviction imposes a firearm disability [enforceable by a criminal sanction]" }, { "docid": "11341459", "title": "", "text": "law) must expressly restore the right to bear arms. United States v. Matassini, 565 F.2d 1297, 1307-08 (5th Cir. 1978). See also Diaz v. Chasen, 642 F.2d 764 (5th Cir. 1981) (automatic pardon granted upon completion of sentence for first Louisiana felony conviction does not deprive Commissioner of Customs of the authority to revoke a customhouse cartman’s license). Two circuits have held that automatic expungement statutes similar to, and in some cases more restrictive than, Texas’s art. 42.12, do not exempt one convicted of a felony from liability under § 1202. See United States v. Bergeman, 592 F.2d 533, 535-37 (9th Cir. 1979) (Idaho statute similar to § 42.12); United States v. Herrell, 588 F.2d 711, 713 (9th Cir. 1978), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1979) (Arizona statute provides that the expunged conviction can be proved in any subsequent prosecution); United States v. Potts, 528 F.2d 883, 885 (9th Cir. 1975) (Washington statute similar to Arizona’s); United States v. Kelly, 519 F.2d 794, 796 (8th Cir.), cert. denied, 423 U.S. 926, 96 S.Ct. 272, 46 L.Ed.2d 254 (1975) (Minnesota statute similar to Arizona’s); but cf. New Banner Institute, Inc. v. Dickerson, 649 F.2d 216, 219-21 (4th Cir. 1981), cert. granted, 455 U.S. 1015, 102 S.Ct. 1708, 72 L.Ed.2d 132 (1982) (Iowa conviction of corporate licensee’s board chairman which had been unconditionally and absolutely expunged did not disqualify corporation from being a licensed firearms dealer under 18 U.S.C. § 923(c)). However, this court and two other circuits have held that when a conviction has been vacated pursuant to the Youth Corrections Act, the defendant is not a “felon” for purposes of § 1202. United States v. Arrington, 618 F.2d 1119, 1122-24 (5th Cir. 1980); United States v. Purgason, 565 F.2d 1279, 1280-81 (4th Cir. 1977); United States v. Fryer, 545 F.2d 11, 13-14 (6th Cir. 1976). The Supreme Court recently held that an extant prior state felon conviction which may be subject to collateral attack under Gideon v. Wainwright can be used as a predicate for a subsequent conviction for possession of a firearm in" }, { "docid": "19819248", "title": "", "text": "the Fifth Circuit in support of its holding that a conviction under the Gun Control Act could not be premised on a conviction that had been expunged under the Youth Corrections Act. United States v. Arrington, 618 F.2d 1119, 1124 (5th Cir. 1980). In the present case we are, of course, confronted with the effect of a state ex-punction statute, which introduces principles of federalism into the calculus. Most of the courts that have considered the question have upheld use of an expunged state conviction as the predicate for conviction under the Gun Control Act. They have reasoned that, because the definition of “convicted” for purposes of the Gun Control Act is a question of federal law, state ex-punetion statutes or state court interpretations of the effects of those statutes are irrelevant to resolution of that question. See, e. g., United States v. Lehmann, 613 F.2d at 135. In divining federal law, however, these courts have looked only to the provisions of the Gun Control Act itself, and, finding no express exclusion of expunged convictions in the Act, they have upheld firearms convictions premised on expunged state convictions. See, e. g., United States v. Bergeman, 592 F.2d 533, 536 (9th Cir. 1979); United States v. Mostad, 485 F.2d 199, 200-01 (8th Cir. 1973). The ultimate rationale for decision in those cases is, therefore, the failure of Congress specifically to address the use of expunged convictions under the Act — a rationale that would apply to convictions that have been expunged under either state or federal statutes. This rationale, however, was implicitly rejected by the courts in Arrington, Purgason and Fryer. Moreover, the Tenth Circuit, in considering a prosecution under 18 U.S.C. § 922 that was predicated on a conviction that had been expunged subsequent to the commencement of the federal prosecution, implied that, had the state conviction been expunged prior to commencement of the federal proceeding, it could not have served as the basis for a federal firearms conviction. United States v. Brzoticky, 588 F.2d at 775. A few months later, the same court stated that, without regard to whether" }, { "docid": "11341458", "title": "", "text": "successfully completed his period of probation, the court shall dismiss the accusation, complaint, information, or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty, except that proof of his said conviction or plea of guilty shall be made known to the court should the defendant again be convicted of any criminal offense. See Payton v. State, 572 S.W.2d 677, 678-79 (Tex.Cr.App.1978). Section 1203 of Title 18 App., U.S.C., provides exemptions from § 1202 for prison “gun trusties” and for “any person who has been pardoned by the President of the United States or the chief executive of a State and has expressly been authorized by the President or such chief executive, as the case may be, to receive, possess, or transport in commerce a firearm ” (emphasis added). We have held that, to provide exemption from § 1202, any state pardon granted after 1968 (the year the Gun Control Act became law) must expressly restore the right to bear arms. United States v. Matassini, 565 F.2d 1297, 1307-08 (5th Cir. 1978). See also Diaz v. Chasen, 642 F.2d 764 (5th Cir. 1981) (automatic pardon granted upon completion of sentence for first Louisiana felony conviction does not deprive Commissioner of Customs of the authority to revoke a customhouse cartman’s license). Two circuits have held that automatic expungement statutes similar to, and in some cases more restrictive than, Texas’s art. 42.12, do not exempt one convicted of a felony from liability under § 1202. See United States v. Bergeman, 592 F.2d 533, 535-37 (9th Cir. 1979) (Idaho statute similar to § 42.12); United States v. Herrell, 588 F.2d 711, 713 (9th Cir. 1978), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1979) (Arizona statute provides that the expunged conviction can be proved in any subsequent prosecution); United States v. Potts, 528 F.2d 883, 885 (9th Cir. 1975) (Washington statute similar to Arizona’s); United States v. Kelly, 519 F.2d 794, 796 (8th Cir.), cert. denied, 423" }, { "docid": "7249989", "title": "", "text": "civil rights under the state constitution despite his prior felony conviction, thus making him ineligible for prosecution under sections 922(g)(1) and 921(a)(20). Section 922(g)(1) provides that a person convicted of a felony in state or federal court cannot “ship or transport in interstate ... commerce, or possess in or affecting commerce, any firearm or ammunition; or ... receive any firearm or ammunition which has been shipped or transported in interstate ... commerce.” Under 18 U.S.C. § 921(a)(20), a prior felony conviction cannot be used as a predicate felony for purposes of section 922(g) if it has been expunged or set aside, or if it is one for which a person has been pardoned, or if the person has had civil rights restored. United States v. Flower, 29 F.3d 530, 533 (10th Cir.1994). In Flower, as in the instant case, the defendant relied on various provisions of the Utah constitution to argue that his civil rights had been restored. We pointed out that under the law of this circuit, a defendant must show that his rights to vote, serve on a jury, hold public office and possess firearms have all been restored. See id. at 536. Here, the government presented undisputed evidence that Mr. Baer’s state conviction had not been expunged or pardoned, and that none of his civil rights had been restored. We note in particular that Utah law expressly forbids convicted felons from serving on juries, one of the rights that must be restored in order to escape the provisions of section 922(g). See id. (quoting Utah Code Ann. § 78-46-7(2)). Mr. Baer’s bare assertion that the various state statutes relied on by the government and the trial court violate the state constitution, as he construes it, is unsupported by any legal authority and without merit. Accordingly, we reject, his argument that his state law felony does not support his section 922(g)(1) conviction. Mr. Baer further argues that Congress exceeded its authority under the Commerce Clause in enacting sections 922(g)(1) and 922(k). He relies on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)," }, { "docid": "11670196", "title": "", "text": "held that the “distinction between a conviction that is ‘invalid’ and one that is ‘void from its inception’ depends too much on semantics.” United States v. Mayfield, 810 F.2d 943, 945 (10th Cir. 1987). We agree that the difference in Padilla’s case is semantic and has no significance for the purposes of § 922(g)(1). Padilla argues that a 1986 amendment to the federal firearms statute requires a different result from that reached in the Lewis line of cases, including the Tenth Circuit’s decision in Mayfield. In 1986, Congress amended the statute to provide that the term “crime punishable by imprisonment for a term exceeding one year” is defined as follows: What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. 18 U.S.C. § 921(a)(20). Padilla contends that this language has the effect of overruling the holding in Lewis and making state law controlling as to both the retroactive effect of a subsequent state order vacating a predicate felony conviction and the question whether the conviction was void ab initio. Padilla’s argument cannot be squared with the plain language of the amended § 921(a)(20), which refers to a conviction that “has been expunged, ... or for which a person has been pardoned or has had civil rights restored.” (emphasis added). This phraseology suggests no change in the rule of Lewis or Mayfield; the ex-pungement, pardon, or restoration of civil rights (whether or not on the ground that the conviction was void ob initio) must occur before the erstwhile felon takes possession of a firearm. The controlling state determination operates only prospectively, so that after the expungement, pardon, or restoration of civil rights that felony conviction no longer serves to impose" }, { "docid": "13684208", "title": "", "text": "Carolina General Statutes provides that anyone convicted of a crime and whose rights of citizenship are forfeited, shall have their rights restored upon unconditional discharge after service of the sentence imposed. Section 14-415.1 provides that it shall be unlawful for a person convicted of certain crimes to possess a firearm only for a period of five years after the discharge from his sentence. N.C.Gen.Stat. § 14-415.1. The five years have passed for Allen. Read in conjunction, Allen argues that he has been given what is tantamount to the pardon and express authorization to carry firearms required by section 1203(2). We disagree. In United States v. Potts, 528 F.2d 883, 885 (9th Cir. 1975) (en banc), we held that a felony conviction expunged by a state statute could be used as a predicate offense when the state statute specifically provided that the prior conviction could be pleaded and proved in a subsequent prosecution for another offense. Allen argues that this case does not fall within our Potts decision. The defendant in Potts claimed that since his conviction was completely erased from his record, he was no longer a person who had been convicted of a felony for purposes of section 1202(a)(1). Id. at 884; see also United States v. Herrell, 588 F.2d 711, 713 (9th Cir.), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1978). Allen, on the other hand, does not argue that the effect of North Carolina General Statute 13-1 (restoration of citizenship) is to eliminate a prior state conviction as the basis for a federal conviction for possession of a firearm by a convicted felon. He argues that section 13-1 and section 14-415.1 operate as a pardon for purposes of 18 U.S.C.App. § 1203(2). We agree that Potts does not directly answer the question whether these North Carolina statutes satisfy the requirements of section 1203(2). The issue before us is the extent to which state statutory law is relevant to the scope of the exemption provided by section 1203(2). See United States v. Potts, supra, 528 F.2d at 887 (Sneed, J., concurring). Issues of statutory" }, { "docid": "9832556", "title": "", "text": "crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. 18 U.S.C. § 921(a)(20). The parties do not dispute that Morgan’s 1968 burglary conviction is a crime punishable by imprisonment for more than one year. Morgan contends that pursuant to the exception provided in § 921(a)(20), his burglary conviction is no longer a conviction for the purposes of § 922(g)(1), because his civil rights have been restored. In Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), a case cited by Morgan, the Supreme Court addressed the issue of whether a state felony conviction which was subject to collateral attack under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), but not yet overturned or pardoned, could serve as a predicate offense under 18 U.S.C. app. § 1202(a)(1) (Supp. IV 1969). That statute proscribed the possession of a firearm by “any person who ... has been convicted by a court of the United States or of a State ... of a felony.” Lewis, 445 U.S. at 56 n. 1, 100 S.Ct. 915. The Supreme Court held, “[the statute’s] plain meaning is that the fact of a felony conviction imposes a firearm disability until the conviction is vacated or the felon is relieved of his disability by some affirmative action, such as a qualifying pardon....” Id. at 60-61, 100 S.Ct. 915. After Lewis, the Supreme Court had the opportunity to decide Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983). In Dickerson, the Court considered whether a state conviction which had been expunged under state law prior to the individual’s possession of a firearm could serve as a predicate offense for" }, { "docid": "7249988", "title": "", "text": "SEYMOUR, Chief Judge. Devon Wendall Baer was convicted by a jury of one count of possessing firearms after a felony conviction in violation of 18 U.S.C. § 922(g)(1), and one count of possessing firearms with obliterated serial numbers in violation of 18 U.S.C. § 922(k). He appeals, arguing that he has the right to bear arms under the Utah state constitution, that the federal statutes under which he was convicted are beyond Congress’ power under the Commerce Clause and in violation of the Second, Ninth and Tenth Amendments, and that he was the object of vindictive prosecution. Concluding that his arguments are without merit, we affirm. We first address Mr. Baer’s contention that his federal weapons prosecution was improper because the Utah constitution gives him the right to bear arms. We agree with the government that we need not consider this issue because under the Supremacy Clause, state constitutional provisions cannot override federal criminal statutes unless incorporated into federal law. Mr. Baer also appears to make the separate but related argument that he holds full civil rights under the state constitution despite his prior felony conviction, thus making him ineligible for prosecution under sections 922(g)(1) and 921(a)(20). Section 922(g)(1) provides that a person convicted of a felony in state or federal court cannot “ship or transport in interstate ... commerce, or possess in or affecting commerce, any firearm or ammunition; or ... receive any firearm or ammunition which has been shipped or transported in interstate ... commerce.” Under 18 U.S.C. § 921(a)(20), a prior felony conviction cannot be used as a predicate felony for purposes of section 922(g) if it has been expunged or set aside, or if it is one for which a person has been pardoned, or if the person has had civil rights restored. United States v. Flower, 29 F.3d 530, 533 (10th Cir.1994). In Flower, as in the instant case, the defendant relied on various provisions of the Utah constitution to argue that his civil rights had been restored. We pointed out that under the law of this circuit, a defendant must show that his rights" }, { "docid": "19819245", "title": "", "text": "held that New Banner should have been denied its licenses under section 923(d)(1)(B) and that this violation could serve as the basis for revocation of those licenses under section 923(e). The district court upheld this disposition by the Director. II Although New Banner has asserted a number of statutory and constitutional challenges to the Director’s revocation of its firearms licenses, we need only address the issue of Kennison’s Iowa “conviction” inasmuch as our resolution of that issue is dis-positive of this appeal. See Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974). The question whether a person has been “convicted” for purposes of the federal firearms law is ultimately one of federal law, regardless of whether the alleged predicate “conviction” resulted from a violation of federal or state law. See, e. g., United States v. Lehmann, 613 F.2d 130, 135 (5th Cir. 1980); United States v. Benson, 605 F.2d 1093, 1094-95 (9th Cir. 1979). Contra United States v. Brzoticky, 588 F.2d 773, 775 (10th Cir. 1978). Applying federal law in this case, Kennison’s plea of guilty to the Iowa charge of carrying a concealed weapon must be regarded as a “conviction” because, as the Supreme Court held in Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969), a “plea of guilty ... is itself a conviction.” See United States v. Benson, 605 F.2d at 1095. Therefore, it is clear that, at least during the period of Kennison’s probation on the Iowa charge, his “conviction” on that charge would have barred him from shipping, transporting or receiving firearms under section 922(g) and (h). See, e. g., United States v. MacGregor, 617 F.2d 348 (3d Cir. 1980); Barker v. United States, 579 F.2d 1219, 1226 (10th Cir. 1978). The Supreme Court, however, has recently recognized that, while “the fact of a felony conviction imposes a firearm disability,” that disability may be removed by the vacation of the conviction on appeal or “by some affirmative action, such as a qualifying pardon or a consent from the Secretary of the Treasury.” Lewis" }, { "docid": "13684207", "title": "", "text": "argues that his 1964 North Carolina felony conviction cannot be used as a predicate offense for a violation of 18 U.S.C.App. § 1202(a), which provides in part: Any person who— (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, and who receives, possesses, or transports in commerce or affecting commerce ... any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. Under id. § 1203(2), persons who have been “pardoned” and have been “expressly authorized ... to receive, possess or transport ... a firearm” by the chief executive of a state are exempt from liability under section 1202(a). Although Allen has not received a pardon from the governor of North Carolina, nor an express authorization to carry firearms, he argues that under the statutory scheme of North Carolina he has been given the functional equivalent of such a pardon and authorization. He relies on two state statutes. Section 13-1 of the North Carolina General Statutes provides that anyone convicted of a crime and whose rights of citizenship are forfeited, shall have their rights restored upon unconditional discharge after service of the sentence imposed. Section 14-415.1 provides that it shall be unlawful for a person convicted of certain crimes to possess a firearm only for a period of five years after the discharge from his sentence. N.C.Gen.Stat. § 14-415.1. The five years have passed for Allen. Read in conjunction, Allen argues that he has been given what is tantamount to the pardon and express authorization to carry firearms required by section 1203(2). We disagree. In United States v. Potts, 528 F.2d 883, 885 (9th Cir. 1975) (en banc), we held that a felony conviction expunged by a state statute could be used as a predicate offense when the state statute specifically provided that the prior conviction could be pleaded and proved in a subsequent prosecution for another offense. Allen argues that this case does not fall within our Potts decision. The defendant in Potts claimed that since his" }, { "docid": "16888855", "title": "", "text": "was the same Gary Lee Wind named in the 1990 judgment of conviction. Although the government presented no corroborating identification evidence, the names were the same, the date of birth on the judgment corresponded to Wind’s age and the defense presented no evidence that Wind was not the Gary Lee Wind named in the judgment of conviction. Consequently, the district court’s finding that Wind was the same Gary Lee Wind named in the 1990 judgment of conviction is not clearly erroneous. A defendant convicted of unlawful possession in violation of 18 U.S.C. § 922(g) who has three prior violent felony convictions can be sentenced to an enhanced penalty under 18 U.S.C, § 924(e)(1), which imposes a fifteen-year minimum mandatory sentence. Title 18 U.S.C. § 924(e)(2)(B), defines “violent felony” as a “crime punishable by imprisonment for a term exceeding one year.” Section 921(a)(20) defines “conviction” according to: the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, ex-pungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. The reference to state law was added as part of the 1986 amendments to the federal firearms statutes. Before the 1986 amendments, federal law exclusively defined prior convictions for purposes of the felon-in-possession statute and determined the effect to be given a state conviction for purposes of prosecution for federal firearms violations, including the effect of any state pardon, expungement, or restoration of civil rights so far as those provisions purported to exempt a person from federal firearms statutes. See United States v. Edwards, 946 F.2d 1347, 1349 (8th Cir. 1991). However, after the 1986 amendments, state law determines what constitutes a prior state conviction for purposes of federal firearms statutes, including the effect of any state pardon, expungement or restoration of civil rights. Id. Thus, after the effective date of the 1986 amendments, if a state" }, { "docid": "1807411", "title": "", "text": "and the statute's legislative history, the court concluded: Under prior law no state pardon could effectively relieve the federal firearm disability unless the state pardon itself expressly renewed the convicted person’s state right to possess firearms. Once again this led to such results as federal convictions in spite of state expungements, pardons or other restorations which allowed the defendant to possess firearms, because the state action did not include an express executive determination that the defendant could possess firearms. In addition to broadening the types of state relief recognizable for federal purposes, the amended § 921(a)(20) turns the tables on the presumption, as it ■ were, to be accorded state relief. No longer will convicted felons risk prosecution unless their pardons allow firearm possession — instead they are protected from federal prosecution unless their state relief expressly provides that they may not possess firearms. We assume Congress meant with the amendment exactly what it meant in the prior law, and the “expressly provides\" language was continually strictly construed to require language on the face of the document itself concerning firearm possession. Id. The Erwin court went on to conclude, however, that the Illinois statute restricting a felon's access to firearms served as evidence that the “civil rights\" restored to a convicted felon by another Illinois statute were not coextensive with the “civil rights” mentioned in section 921(a)(20). Id. at 1297-1300. \"Whatever else Congress may have meant by ‘civil rights,’ it is clear it meant the right to possess firearms.\" Id. at 1297. The court thus held that a defendant convicted of violating section 922(g) must have had his right to possess firearms under state law restored following a prior conviction in order for that conviction to fall within the exemption to sentence enhancement in section 921(a)(20). Id. at 1298." }, { "docid": "9832557", "title": "", "text": "335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), but not yet overturned or pardoned, could serve as a predicate offense under 18 U.S.C. app. § 1202(a)(1) (Supp. IV 1969). That statute proscribed the possession of a firearm by “any person who ... has been convicted by a court of the United States or of a State ... of a felony.” Lewis, 445 U.S. at 56 n. 1, 100 S.Ct. 915. The Supreme Court held, “[the statute’s] plain meaning is that the fact of a felony conviction imposes a firearm disability until the conviction is vacated or the felon is relieved of his disability by some affirmative action, such as a qualifying pardon....” Id. at 60-61, 100 S.Ct. 915. After Lewis, the Supreme Court had the opportunity to decide Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983). In Dickerson, the Court considered whether a state conviction which had been expunged under state law prior to the individual’s possession of a firearm could serve as a predicate offense for a firearms disability under the federal statute, 18 U.S.C. § 922(g)(1). The Court held that notwithstanding that the state court conviction had been expunged before the possession of the firearm occurred, the state conviction remained a predicate conviction for purposes of § 922(g)(1). Dickerson, 460 U.S. at 110-22, 103 S.Ct. 986. See also Thrall v. Wolfe, 503 F.2d 313 (7th Cir.1974) (finding the same). Citing Lewis, the Court explained, “expunction under state law does not alter the historical fact of the conviction, ... as does positive or ‘affirmative action’ .... [E]xpunetion does not alter the legality of the previous conviction and does not signify that the defendant is innocent of the crime to which he pleaded guilty.” Dickerson, 460 U.S. at 115, 103 S.Ct. 986 (citing Lewis, 445 U.S. at 60-61, 100 S.Ct. 915). Morgan also cites United States v. Cabrera, 786 F.2d 1097 (11th Cir.1986), where the Eleventh Circuit held that under Lew is, a defendant’s state conviction could be used to convict him of being a felon in possession of a firearm because" }, { "docid": "14018224", "title": "", "text": "of receipt and possession in Title VII, outside the licensing context, it determined that a proper state pardon would exempt a convicted felon from the operation of the statute, § 1203(2). See United States v. One Lot of Eighteen Firearms, 325 F.Supp. 1326 (D.N.H.1971). Any other reading would lead to absurd results; a convicted felon who received a state pardon expressly authorizing him to receive and possess a firearm, in full compliance with § 1203(2), would, under the Thrall rationale if extended to this case, be susceptible to conviction under § 922(h). We cannot believe that Congress intended so to entrap unwary recipients of state pardons, and, being neither bound nor enthralled by the Seventh Circuit’s decision in Thrall v. Wolfe, decline to apply its lupine logic to the case before us. IV. In view of the length of our discussion, we reiterate briefly our principal conclusions. In considering applications for pardons subsequent to 1968, state pardoning authorities are on notice of the requirements of federal legislation and may so articulate their grants of pardon (consistent with state constitutional and statutory authority) as to make explicit the intended consequences with respect to receipt and possession of firearms. But this was not true prior to 1968. While § 1203(2) may require that authorization to receive, possess, or transport in commerce a firearm be stated in explicit and unmistakable terms with respect to state pardons granted subsequent to the effective date of the Omnibus Act, we hold that the full and complete Florida pardon granted to Matassini in 1955 was sufficiently express to satisfy the requirements of § 1203(2) and thus to exempt Matassini from the proscriptions of § 1202(a). We further hold that any defendant, including Matassini, who can bring himself within the requirements of § 1203(2) is also exempt from liability for the receipt offense under § 922(h), although not exempt from the administrative procedures established by Title IV for licensing purposes. In so holding, we are being true to what we perceive to be the intent of Congress. We do not question the proposition that it is within the" }, { "docid": "19819250", "title": "", "text": "the predicate conviction is a federal or state one, “once one is convicted of a felony he is within the proscription against possession of firearms until that prior conviction is actually overturned or expunged.” Barker v. United States, 579 F.2d at 1226 (emphasis in original). We find the reasoning of the courts in the Youth Corrections Act cases and of the Tenth Circuit in Brzoticky and Barker to be more persuasive than that followed by the courts that have upheld use of an expunged predicate conviction in a prosecution under the Gun Control Act. There are two cogent justifications for this choice. First, by holding in Lewis that a firearms disability may be removed by vacation of the predicate conviction on appeal, the Supreme Court has recognized that convictions other than those expressly excluded from consideration by the terms of the Gun Control Act may not be used as the predicate for a federal firearms conviction. The Lewis Court viewed “the language Congress chose as consistent with the commonsense notion that a disability based upon one’s status as a convicted felon should cease only when the conviction upon which that status depends has been vacated.” Lewis v. United States, 445 U.S. at 61 n.5, 100 S.Ct. at 918 n.5. We think this “common-sense notion” applies whether the predicate conviction has been vacated by appeal or by unconditional expunction. Second, while it is undoubtedly true that the construction of the word “convicted” used in the Gun Control Act is a matter of federal law, it is not at all inconsistent with that principle to find that Congress intended that a person whose conviction has been expunged under a state statute not be considered any longer “convicted.” At least one court has found that it would be “anomalous” to pin the decision whether a person is a convicted felon at the time of a federal firearms prosecution on whether that person’s conviction has been expunged under the law of the state in which he happened to be convicted. United States v. Bergeman, 592 F.2d at 537. Congress has expressly chosen to rely" }, { "docid": "19819249", "title": "", "text": "in the Act, they have upheld firearms convictions premised on expunged state convictions. See, e. g., United States v. Bergeman, 592 F.2d 533, 536 (9th Cir. 1979); United States v. Mostad, 485 F.2d 199, 200-01 (8th Cir. 1973). The ultimate rationale for decision in those cases is, therefore, the failure of Congress specifically to address the use of expunged convictions under the Act — a rationale that would apply to convictions that have been expunged under either state or federal statutes. This rationale, however, was implicitly rejected by the courts in Arrington, Purgason and Fryer. Moreover, the Tenth Circuit, in considering a prosecution under 18 U.S.C. § 922 that was predicated on a conviction that had been expunged subsequent to the commencement of the federal prosecution, implied that, had the state conviction been expunged prior to commencement of the federal proceeding, it could not have served as the basis for a federal firearms conviction. United States v. Brzoticky, 588 F.2d at 775. A few months later, the same court stated that, without regard to whether the predicate conviction is a federal or state one, “once one is convicted of a felony he is within the proscription against possession of firearms until that prior conviction is actually overturned or expunged.” Barker v. United States, 579 F.2d at 1226 (emphasis in original). We find the reasoning of the courts in the Youth Corrections Act cases and of the Tenth Circuit in Brzoticky and Barker to be more persuasive than that followed by the courts that have upheld use of an expunged predicate conviction in a prosecution under the Gun Control Act. There are two cogent justifications for this choice. First, by holding in Lewis that a firearms disability may be removed by vacation of the predicate conviction on appeal, the Supreme Court has recognized that convictions other than those expressly excluded from consideration by the terms of the Gun Control Act may not be used as the predicate for a federal firearms conviction. The Lewis Court viewed “the language Congress chose as consistent with the commonsense notion that a disability based upon" }, { "docid": "6226684", "title": "", "text": "to the district court for the entry of summary judgment for defendants. . 18 U.S.C. §§ 921-928 were created as chapter 44 of Title 18 by Title IV, “State Firearms Control Assistance,” of the Omnibus Crime Control and Safe Streets Act of 1968, Public Law 90-351, 82 Stat. 197, 225, and amended by Public Law 90-618, 82 Stat. 1214. . Under 18 U.S.C. App. § 1203(2), part of Title VII, “Unlawful possession or receipt of firearms,” Omnibus Crime Control and Safe Streets Act of 1968, the pardoning governor’s use of this language made Title VII inapplicable to plaintiff. See footnote 9, infra, and accompanying text. However, § 1203 does not apply to Title IV, of which § 922 is a part. . If Thrall’s prior conviction were federal, and had he a presidential pardon, the Treasury’s regulations would permit licensure. 26 C.F.R. § 178.142. Defendant’s brief suggests that the Treasury considers this treatment constitutionally compelled. We express no opinion as to whether Article II, § 2 and Garland actually require that result. a. See United States v. Nasser, 476 F.2d 1111, 1117 (7th Cir. 1973). . The consequences of a pardon expressly based on a determination of innocence need not be determined here. See Richards v. United States, supra, at 606. Similarly, this case does not involve the effect of a judicial order in the convicting jurisdiction setting aside the conviction. See United States v. Hoctor, 487 F.2d 270 (9th Cir. 1973). These situations entail considerations which could lead to a different conclusion. . Because his 1942 offense involved use of a pistol, Thrall is ineligible for this relief. . 18 U.S.C. § 845(b). . In Hootor, the majority held that a state statute under which certain convictions are judicially expunged after satisfactory completion of probation relieved defendant of the disability in § 842 (i). Hoctor may be distinguishable in that it involved a state court’s judicially setting aside the original guilty verdict. . Under this section, plaintiff’s pardon exempted him from Title VII. . We note two decisions which appear to assume, though not squarely to hold, that a" }, { "docid": "22638514", "title": "", "text": "1203(2) exempts from Title VII “any person who has been pardoned by the President of the United States or the chief executive of a State and has expressly been authorized by the President or such chief executive, as the case may be, to receive, possess, or transport in commerce a firearm.” Thus, in that statute, even a pardon is not sufficient to remove the firearms disabilities unless there is express authorization to have the firearm. It is inconceivable that Congress could have so provided and yet have intended, as the Court of Appeals concluded, 649 F. 2d, at 220-221, to give a state expunction a contrary and unconditional effect. After all, expunction devices were not unknown or unusual when Title IV came into being in 1968. See Comment, Expungement in California: Legislative Neglect and Judicial Abuse of the Statutory Mitigation of Felony Convictions, 12 U. San Fran. L. Rev. 155, 161 (1977); 1909 Cal. Stats., ch. 232, §1. And the Federal Youth Corrections Act, in which Congress itself provided for expunction in certain circumstances, see 18 U. S. C. § 5021, was enacted as far back as 1950. See 64 Stat. 1089. 6. Title 21 U. S. C. § 844(b) is a federal expunction statute providing that a first offender found guilty of simple possession of a controlled substance may be placed on probation without entry of judgment, and that, upon successful completion of the probation, the court shall discharge the defendant and dismiss the proceeding against him. But Congress also specifically provided in § 844(b)(1) that such discharge or dismissal “shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime ... or for any other purpose.” This provision would be superfluous if Congress had believed that expunction automatically removes the disqualification. Congress obviously knew the plain meaning of the terms it employed in statutes of this kind, and when it wished to create an exception for an expunged conviction, it did so expressly. V “As in all cases of statutory construction, our task is to interpret the words of" }, { "docid": "17669678", "title": "", "text": "year.” 18 U.S.C. § 922(g)(1). Eighteen years later, in 1986, Congress passed an amendment which exempted from prosecution felons who, under the law of the jurisdiction of their predicate conviction, had received a pardon, expungement, or restoration of civil rights. 18 U.S.C. § 921(a)(20) (“Firearms Owners’ Protection Act”) (“FOPA”). This subsection provides: Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. Id. (emphasis added). McGrath argues that the exemption for felons who have “had civil rights restored” should extend to felons whose civil rights were never taken away. The parties agree that the pertinent civil rights in question are those which most states extend by virtue of citizenship within their borders: (i) the right to vote; (ii) the right to hold elective office; and (iii) the right to sit on a jury. See, e.g., United States v. Cassidy, 899 F.2d 543, 549 (6th Cir.1990). The parties also agree that under Vermont law felons who were convicted but never incarcerated do not suffer the suspension of any of these rights. Nor does Vermont law forbid such felons from possessing firearms. McGrath, therefore, never suffered a deprivation of civil rights by reason of his predicate felony conviction. McGrath argues that to have not suffered loss of civil rights upon conviction is the functional equivalent of having had civil rights “restored” for purposes of the exemption granted by § 921(a)(20). The argument is unavailing. The word “restore” means “to give back (as something lost or taken away).” Webster’s Third New International Dictionary 1936 (1976). The “restoration” of a thing never lost or diminished is a definitional impossibility. McGrath simply does not come within the terms of the statute. McGrath makes several arguments of varying persuasiveness to escape the plain language of the statute. He first argues that it is anomalous for the federal government to treat" } ]

[ { "docid": "2164416", "title": "", "text": "her holding is unauthorized and imprudent, and accordingly, I respectfully dissent. ORDER March 14, 1995. Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART and PARKER, Circuit Judges. BY THE COURT: A majority of the judges in active service, on the court’s own motion, having determined to have this case reheard en banc, IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The clerk will specify a briefing schedule for the filing of supplemental briefs. . That case is Alberti v. Klevenhagen, 790 F.2d 1220 (5th Cir.1986), which I discuss at more length, infra. . Specifically, in regard to the initial Fifth Circuit case, Judge Berrigan opines that one panel \"overlooked [its] message”; a second panel’s interpretation of it \"was an unfortunate error”; and a third panel “overlooked the prior precedent.\" . By Judge Berrigan's reasoning, any panel would be free, at any time, to override an entire line of interpretive jurisprudence by declaring that those panels had misinterpreted an earlier case from this court or the Supreme Court. For example, all of this court’s cases interpreting bedrock decisions such as Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), or Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc), could be undermined by this device. . The point of this discussion is that a panel cannot overrule, or declare void, a prior panel's interpretation of earlier circuit caselaw, even if it appears flawed. Where the prior panel was aware of, discussed, and attempted to apply that caselaw, its interpretation itself becomes binding caselaw that can be overruled only by action of the en banc court or the Supreme Court. More commonly, our rule of orderliness comes into play when two panels become \"ships passing in the night.” A subsequent panel may be unaware of an earlier holding and, consequently, may reach a contrary result. No interpretation is involved, as the later panel makes no mention of the" } ]

[ { "docid": "23130599", "title": "", "text": "has been an en banc decision of our Court or a Supreme Court decision to the contrary. See, e.g., Grabowski v. Jackson County Pub. Defenders Office, 47 F.3d 1386, 1398-1403 (5th Cir.) (Smith, J., concurring in part and dissenting in part), vacated for reh’g en banc, id. at 1403, district court judgment aff'd, 79 F.3d 478 (5th Cir.1996) (en banc); see also Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 197 (5th Cir.2000); Teague v. City of Flower Mound, 179 F.3d 377 (5th Cir.1999); Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997). Likewise, our Circuit also has a policy that requires a subsequent panel to give deference under the law of the case doctrine to a holding of a prior panel in the same case. See, e.g., Beets v. Johnson, 180 F.3d 190 (5th Cir.1999) (applying law of the case doctrine to decline reconsideration of an issue decided in a previous appeal), cert. denied, — U.S. ——120 S.Ct. 946, 145 L.Ed.2d 822 (2000); Quest Medical, Inc. v. Apprill, 90 F.3d 1080, 1094 (5th Cir.1996); United States v. Singleton, 49 F.3d 129, 134 (5th Cir.); Griffin v. Box, 956 F.2d 89, 93 (5th Cir.1992). The law of the case doctrine should foreclose reconsideration of the quantum of the damages in this case and reconsideration of the issue of municipal liability under § 1983 for failure-to-train in this case. Law of the case is a prudential doctrine — -a principle that “issues once decided in a case that recur in later stages of the same case are not to be redetermined.” See Jack H. Freidenthal, Civil Procedure § 14.1 (2d ed.1993) (citing Allen D. Vestle, Law of the Case: Single Suit Preclusion, 1967 Utah L.Rev. 1). See generally Lincoln National Life Ins. Co. v. Roosth, 306 F.2d 110 (5th Cir.1962) (en bane). “As most commonly defined, the [law of the case] doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618, 103" }, { "docid": "20713657", "title": "", "text": "v. Smith, 203 F.3d 884, 893 (5th Cir.2000); United States v. Ehrlich, 902 F.2d 327, 330 (5th Cir. 1990). This court recently applied de novo review to whether the defendant held a position of trust. See United States v. Kay, 513 F.3d 432, 460 (5th Cir.2007)[, cert. denied, 555 U.S. 813, 129 S.Ct. 42, 172 L.Ed.2d 21 (2008)]. The panel in Kay, 513 F.3d at 460 & n. 125, relied on United States v. Sudeen, 434 F.3d 384, 391 n. 19 (5th Cir.2005), which based its statement on United States v. Hussey, 254 F.3d 428, 431 (2d Cir.2001), after observing that the standard of review would not affect its decision. De novo review appears foreclosed, however, by this circuit’s earlier ruling that a “district court’s application of § 3B1.3 is a sophisticated factual determination that will be affirmed unless clearly erroneous.” [Ehrlich, 902 F.2d at 330.] Despite whatever persuasiveness Kay and Sudeen may have, our rule of orderliness directs that “‘one panel of this court cannot overrule the decision of another panel.’ ” [Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997).] Id. (footnotes omitted). Therefore, the standard of review used by the court in this case — clear error — is the correct one, see supra Per Curiam Op. at 248, based on earliest case controls, see Matter of Howard, 972 F.2d 639, 641 (5th Cir.1992). It is not just in the context of § 3B1.3 enhancements that we have been inconsistent in our standard of review for Guidelines enhancements. I have previously written about the intra-circuit split as to “whether the determination that [U.S.S.G.] § 3Cl.l’s [obstruction of justice] requirements are met is ... a question of fact” or a question of law and what the corresponding standard of review is — a question that has also produced an inter-circuit split. See United States v. Claiborne, 676 F.3d 434, 439 n. 1 (5th Cir.2011) (Prado, J., concurring). Broadly framed, the issue is whether adjustments under Section 3 of the Guidelines are questions of law reviewed de novo or questions of fact reviewed for clear error." }, { "docid": "22402050", "title": "", "text": "the ground that Lakoski precludes a private right of action under title IX. We review the dismissal of a complaint under rule 12(b)(6) de novo. Blackburn v. Marshall, 42 F.3d 925, 931 (5th Cir.1995). A motion to dismiss under rule 12(b)(6) “is viewed with disfavor and is rarely granted.” Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir.1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.1986). The district court may not dismiss a complaint under rule 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Blackburn, 42 F.3d at 931. This strict standard of review under rule 12(b)(6) has been summarized as follows: “The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief.” 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 601 (1969). B. In Lakoski, we held that title VII provides the exclusive remedy for individuals alleging employment discrimination on the basis of sex in federally funded educational institutions. Lakoski, 66 F.3d at 753. Lowrey urges us to reconsider Lakoski. This we cannot do, as one panel of this court cannot overrule the decision of another panel; such panel decisions may be overruled only by a subsequent decision of the Supreme Court or by the Fifth Circuit sitting en banc. See FDIC v. Dawson, 4 F.3d 1303, 1307 (5th Cir.1993); Burlington N.R.R. v. Brotherhood of Maintenance of Way Employees, 961 F.2d 86, 89 (5th Cir.1992); Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.1991) (citing cases). Therefore, even if we were inclined to disagree with Lakoski, we would deny Lowre/s invitation to reconsider Lakoski, which is the" }, { "docid": "18560196", "title": "", "text": "re Goff states an incorrect interpretation of section 541(c)(2), we still would have no authority to overrule an earlier decision of our Court. In this circuit, one panel may not overrule the decision — right or wrong — of a prior panel, absent en banc reconsideration or a superseding contrary decision of the Supreme Court. Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.1991); Brown v. United States, 890 F.2d 1329, 1336 (5th Cir.1989). The decision of the Supreme Court in Mackey v. Lanier Collections Agency & Serv., Inc. does not alter the precedential effect of In re Goff. In Mackey, the Supreme Court ruled that, while ERISA preempted a statute which specifically exempted funds in an employee benefit plan from garnishment, ERISA did not preempt a general garnishment statute to the extent that the statute applied to welfare benefit plans. The Court commented that the ERISA antialienation provision prevents creditors from reaching the funds in pension plans, but not welfare plans: Where Congress intended in ERISA to preclude a particular method of state-law enforcement of judgments, or extend an-tialienation protection to a particular type of ERISA plan, it did so expressly in this statute. Specifically, ERISA § 206(d)(1) bars (with certain enumerated exceptions) the alienation or assignment of benefits provided for by ERISA pension benefit plans. 29 U.S.C. § 1056(d)(1). Congress did not enact any similar provision applicable to ERISA welfare benefit plans.... 486 U.S. 825, 836, 108 S.Ct. 2182, 2188, 100 L.Ed.2d 836 (1988) (emphasis in original). On its face, the decision in Mackey does not appear to disturb the decision of the Fifth Circuit in In re Goff. Mackey confirms the fact that a creditor cannot employ state garnishment law to alienate pension plan benefits. In re Goff confirms the fact that the ERISA antialienation provision does not preclude the inclusion of pension plan benefits in the bankruptcy estate. Each opinion serves a different purpose: the Supreme Court opinion resolves a conflict between a federal statute and a state statute, while the Fifth Circuit opinion resolves a conflict between two federal statutes — ERISA" }, { "docid": "17161081", "title": "", "text": "113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), which again addressed the issue of Cage errors. In Sullivan, the Court unanimously held that a constitutionally defective instruction on the reasonable doubt standard is not subject to “harmless error” review. Id. at 281, 113 S.Ct. at 2082. A Cage error, the Court indicated, creates a “structural error” in the trial, undermining a “basic protection .. - without which a criminal trial cannot reliably serve its function.” Id. at 281, 113 S.Ct. at 2083 (internal quotation omitted). Brown argues that the Court’s holding in Sullivan “directly undermines” the analysis in Skelton, which had concluded that Cage error was not of a “structural” nature. Brown’s argument, however, has already been rejected by this court. In Smith v. Stalder, No. 93-3683, 26 F.3d 1118 (5th Cir. June 16, 1994) (per curiam) (unpublished), the court refused habeas relief on Cage grounds in a similar case. The court took note of Sullivan, but concluded that it did not speak to the issue decided by Skelton: “Sullivan was a direct appeal ..: [it] did not discuss the retroactive application of Cage because the question was not an issue in the case.” Id. Although Smith was an unpublished decision, we are bound by its holding. See Local Rule 47.5.3 (“Unpublished opinions issued before January 1, 1996 are precedent”). A panel is not at liberty to disagree with the decision of a prior panel. Absent action by the Supreme Court, any error Brown sees in Smith may be corrected only by this court sitting en banc. FDIC v. Dawson, 4 F.3d 1303, 1307 (5th Cir.1993), cert. denied, 512 U.S. 1205, 114 S.Ct. 2673, 129 L.Ed.2d 809 (1994); Burlington Northern R.R. v. Brotherhood of Maintenance of Way Employees, 961 F.2d 86, 89 (5th Cir.1992), cert. denied, 506 U.S. 1071, 113 S.Ct. 1028, 122 L.Ed.2d 173 (1993). Accordingly, we hold that Brown may not invoke Cage to attack his conviction on collateral review. (2) Although we conclude that, under Fifth Circuit precedent, Teague bars the consideration of Brown’s Cage challenge on collateral review, we are persuaded to consider the federal district court’s" }, { "docid": "22402051", "title": "", "text": "favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief.” 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 601 (1969). B. In Lakoski, we held that title VII provides the exclusive remedy for individuals alleging employment discrimination on the basis of sex in federally funded educational institutions. Lakoski, 66 F.3d at 753. Lowrey urges us to reconsider Lakoski. This we cannot do, as one panel of this court cannot overrule the decision of another panel; such panel decisions may be overruled only by a subsequent decision of the Supreme Court or by the Fifth Circuit sitting en banc. See FDIC v. Dawson, 4 F.3d 1303, 1307 (5th Cir.1993); Burlington N.R.R. v. Brotherhood of Maintenance of Way Employees, 961 F.2d 86, 89 (5th Cir.1992); Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.1991) (citing cases). Therefore, even if we were inclined to disagree with Lakoski, we would deny Lowre/s invitation to reconsider Lakoski, which is the settled law of this circuit. Title IX does not afford a private right of action for employment discrimination on the basis of sex in federally funded educational institutions. C. In addition to her allegations of employment discrimination, Lowrey charged that Tarleton had systematically misalloeated resources among male and female athletes in violation of title IX. She alleged that, as a consequence of her participation in the Gender Equity Task Force (which identified alleged violations of titles IX and title VII), her constant objection to such discriminatory practices, and her participation in a civil rights complaint filed with the Department of Education, Tarleton has retaliated against her, inter alia, by denying her a promotion to the position of Athletic Director and by terminating her position as Women’s Athletic Coordinator. Consequently, Lowrey attempted to state a claim for retaliation under title IX. The district court dismissed this retaliation claim pursuant to rule 12(b)(6), however, holding that Lakoski precludes a private cause of action for retaliation under title IX. On appeal, Lowrey argues that this cause of action" }, { "docid": "1481669", "title": "", "text": "to federal court, a federal statutory scheme must: 1) provide a civil enforcement provision that creates a federal cause of action that replaces and protects the same interests as the preempted state law causes of action; 2) provide a specific jurisdictional grant to the federal courts to enforce the cause of action created by the federal statute; and 3) reflect a clear Congressional intent to make the preempted state claims removable to federal court. Aaron v. National Union Fire Ins. Co., 876 F.2d 1157, 1164-65 (5th Cir.1989); City of Laredo v. Texas Mexican Ry. Co., 935 F.Supp. 895, 897 (S.D.Tex.1996); Merkel, 886 F.Supp. at 566; Brown v. Crop Hail Management, 813 F.Supp. 519, 523-24 (S.D.Tex. 1993). The defendant in this case would have this court utilize the Fifth Circuit’s reasoning in the decision of Trans World Airlines, Inc. v. Mattox, 897 F.2d 773, 787 (5th Cir.1990). In Trans World Airlines, the Fifth Circuit found that the Airline Deregulation Act of 1978 completely preempted that plaintiffs state law claims by the mere fact that Congress had included an express preemption provision within the statute. Trans World Airlines, 897 F.2d at 787. However, Trans World Airlines never mentioned nor discussed the Aaron decision and its essential requirements for complete preemption. See Trans World Airlines, 897 F.2d at 787; Aaron, 876 F.2d at 1163-65;. Rodriguez v. Shell Oil Co., 818 F.Supp. 1013, 1015-18 (S.D.Tex.1993). As Trans World Airlines was a panel decision, it cannot overrule the decision of the prior panel in Aaron. ■ “In the event of conflicting panel opinions from this court, the earlier one controls, as one panel of this court may not overrule another.” Heitkamp v. Dyke, 943 F.2d 1435, 1442-13 (5th Cir.1991); See also Texaco Inc. v. Louisiana Land and Exploration Co., 995 F.2d 43, 44 (5th Cir.1993); Smith v. Penrod Drilling Corp., 960 F.2d 456, 459 n. 2 (5th Cir.1992). Regardless, the undersigned believes that the Aaron analysis is the correct one to be utilized in this context and is more in line with the relevant United States Supreme Court decisions, and shall not apply the “complete" }, { "docid": "3729580", "title": "", "text": "of America v. Hartford Underwriters Insurance Co., 391 F.3d 639 (5th Cir.2004), we are bound by the decision because it is the settled law of this circuit and one panel of this court cannot overrule the decision of another panel. See FDIC v. Dawson, 4 F.3d 1303, 1307 (5th Cir.1993); Burlington N. R.R. v. Bhd. of Maint. of Way Employees, 961 F.2d 86, 89 (5th Cir.1992); Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.1991). Nonetheless, I encourage the court to revisit en banc our interpretation of what constitutes conflicting “other insurance” provisions under Hardware Dealers Mutual Fire Insurance Co. v. Farmers Insurance Exchange, 444 S.W.2d 583 (1969). Texas Supreme Court cases instruct that, when possible, we should focus on the plain language of the insurance policy. See Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Crocker, 246 S.W.3d 603, 606 (Tex.2008) (noting that insurance policies are construed according to the same rules of construction that apply to contracts generally); Utica Nat’l Ins. Co., 141 S.W.3d at 206 (citing numerous cases that reiterate that insurance policies must be interpreted and construed like other contracts); Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994) (“When construing a contract, the court’s primary concern is to give effect to the written expression of the parties’ intent.”); Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.1984) (“When there is no ambiguity, it is the court’s duty to give the words used their plain meaning.”). Indeed Hardware Dealers itself teaches that we should not create a “conflict” when the plain language is not reasonably subject to a construction that produces conflict. In Hardware Dealers, the Texas Supreme Court interpreted conflicting “other insurance” provisions in which the conflict had the potential to leave the insured without coverage. One policy included a provision that excluded from coverage anyone who was covered by other insurance. 444 S.W.2d at 585. The other policy included an other insurance provision that converted its coverage into excess insurance if other insurance coverage existed. Id. at 584. In rejecting a construction that left the insured" }, { "docid": "23130598", "title": "", "text": "unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer’s shortcomings may have resulted from factors other than a faulty training program.... Neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. City of Canton, 489 U.S. at 391, 109 S.Ct. at 1206. As indicated earlier in this dissent, I recognize that Part VI(B) of Brown I was inadvertently omitted in the rewrite that produced Brown II. As indicated earlier in this dissent, I recognize that Part VI(B) of Brown I, in which a majority of this Court held that the same evidence before the Court in this appeal failed to establish the County’s liability for failure-to-train, was inadvertently omitted in the rewrite that produced Brown II. But our Circuit has traditionally followed a rule of orderliness that a subsequent panel may not reach a decision inconsistent with the decision of a prior panel unless there has been an en banc decision of our Court or a Supreme Court decision to the contrary. See, e.g., Grabowski v. Jackson County Pub. Defenders Office, 47 F.3d 1386, 1398-1403 (5th Cir.) (Smith, J., concurring in part and dissenting in part), vacated for reh’g en banc, id. at 1403, district court judgment aff'd, 79 F.3d 478 (5th Cir.1996) (en banc); see also Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 197 (5th Cir.2000); Teague v. City of Flower Mound, 179 F.3d 377 (5th Cir.1999); Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997). Likewise, our Circuit also has a policy that requires a subsequent panel to give deference under the law of the case doctrine to a holding of a prior panel in the same case. See, e.g., Beets v. Johnson, 180 F.3d 190 (5th Cir.1999) (applying law of the case doctrine to decline reconsideration of an issue decided in a previous appeal), cert. denied, — U.S. ——120 S.Ct. 946, 145 L.Ed.2d 822 (2000); Quest Medical, Inc. v. Apprill, 90 F.3d" }, { "docid": "21990121", "title": "", "text": "functions, Interaction Recorder references only 11. (Def.App.41-42). However-, Interactive’s own corporate representative, Ganyo, testified that the operability of Interaction Recorder (or the server with which it interacts) would be “seriously degraded” without Voyager. (Pl.App.147). And Recursion has provided evidence that the sheer number of lines of Voyager code referenced in Interaction Recorder has little if any bearing on the role Voyager plays in the software. (Pl.App.500). Summary judgment would therefore be improper on this factor alone. Moreover, the application of the remaining fair use factors militates against summary judgment; for example, it is undisputed that Interactive is using Voyager for commercial, not public, purposes. (Def.App.157). 6. Whether Recursion’s Copyright Claim is Barred by Limitations Interactive next claims that Recursion’s copyright infringement claim is barred by limitations. A copyright infringement action must be brought within three years after the claim accrued. 17 U.S.C. § 507(b). Interactive recognizes the existence of two conflicting Fifth Circuit panel decisions regarding when a copyright infringement action must be brought after a claim accrues. In Makedwde Publishing Co. v. Johnson, 37 F.3d 180 (5th Cir.1994), the Fifth Circuit held that the statute of limitations does not bar claims that accrued within the three-year period prior to the commencement of the lawsuit, but that claims accruing more than three years before the action is filed are time-barred. Id. at 182. Just months later, a different Fifth Circuit panel held that the statute of limitations bars any claims brought three - years after the cause of action accrued. Daboub, 42 F.3d at 290-91. The district court in King Empire, Inc. v. Milan Courtyard Homes, Ltd., 173 F.Supp.2d 649 (S.D.Tex.2001) addressed the conflict between the Makedwde and Daboub decisions as follows: It is well established that one Fifth Circuit panel cannot overrule the decision of another panel; panel decisions may be overruled only by the Fifth Circuit sitting en banc or by a subsequent decision of the Supreme Court. E.g., Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997); Chabowski v. Jackson County Public Defenders Office, 47 F.3d 1386, 1400 n. 4 (5th Cir.1995) (J.Smith, concurring" }, { "docid": "9935456", "title": "", "text": "The Court has identified several reported cases using this abbreviated recitation of the elements of a prima facie case under the ADA. See, e.g., ConAgra Grocery, 436 F.3d at 474; Gonzales v. City of New Braunfels, Tex., 176 F.3d 834, 836 (5th Cir.1999); Ivy v. Jones, 192 F.3d 514, 516 (5th Cir.1999); Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th Cir.1999); Hamilton v. Southwestern Bell Tel., 136 F.3d 1047, 1050 (5th Cir.1998); Sherrod, 132 F.3d at 1119. Nevertheless, the genesis of the authorities in the Gowesky four-part-test line of cases cited in the accompanying text is Daigle v. Liberty Life Ins. Co., 70 F.3d 394 (5th Cir.1995), which predates Sherrod. One appel late panel may not overrule a decision, right or wrong, of a prior panel, absent en banc reconsideration or a superceding contrary decision of the Supreme Court. When faced with conflicting panel opinions, the earlier opinion controls. See, e.g., United States v. Dial, 542 F.3d 1059, 1060 (5th Cir.2008) (\"our rule of orderliness directs that 'one panel of this court cannot overrule the decision of another panel.’ ”) (citing Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997)); Rios v. City of Del Rio, Tex., 444 F.3d 417, 425 n. 8 (5th Cir.2006); Barrientes v. Johnson, 221 F.3d 741, 780 n. 30 (5th Cir.2000). In light of the earliest Fifth Circuit precedent, Hickman must establish a prima facie case of discrimination using the four-part test set forth in Gowesky, 321 F.3d at 511. . The parties do not dispute that Hickman was qualified for her job with DPH. .Plaintiff's Response [Doc. # 56], Exh. A: “Declaration of Pamela Miles-Hickman,” at 1-2. It is noted that Hickman’s list of perceived allergies is not supported by the medical allergy tests she took in December 2005. Where the parties’ documents do not all have legible page numbers, the Court cites to the Electronic Court Filing System automated pagination. Compare Plaintiff’s Response [Doc. # 56], Exh. G: \"Medical Records of Susan Jacobs: Report of Andrew W. Campbell,” at 14 of 40, with Plaintiff's Response [Doc." }, { "docid": "21990124", "title": "", "text": "into play when two panels become “ships passing in the night.” A subsequent panel may be unaware of an earlier holding and, consequently, may reach a contrary result. No interpretation is involved, as the later panel makes no mention of the earlier case. In such an instance, we can easily say that the later opinion is a nullity; any other rule would invite judicial chaos. Grabowski v. Jackson County Public Defenders Office, 47 F.3d 1386, 1400 n. 4 (5th Cir.1995) (J.Smith, concurring in part and dissenting in part). In light of the foregoing, Makedivde is the controlling precedent before the Court. Defendants are liable for acts of infringement, if any, committed within the three-year period prior to the filing of this lawsuit. Id. at 653-54 (footnotes omitted). This Court follows the reasoning of King Empire Court and thus follows the Fifth Circuit’s decision in Makedwde. Therefore, even if Recursion’s copyright infringement claim accrued more than three years prior to the date this action commenced, Recursion could still recover for acts of infringement occurring within three years of that date. “A cause of action for copyright infringement accrues when one has knowledge of a violation or is chargeable with such knowledge.” Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 202 (4th Cir.1997); Barbour v. Head, 178 F.Supp.2d 758, 765 (S.D.Tex.2001). As discussed above, the Court finds that fact issues exist as to when Recursion and/or its predecessor-in-interest, Objectspace, had knowledge of Interactive’s allegedly infringing use of Voyager or was chargeable with such knowledge. The Court further notes that summary judgment is improper because Interactive has failed to point to any evidence establishing the date on which Recursion’s copyright claim accrued. Interactive’s argument on the limitations issue does not even mention an accrual date, and it is unclear from the record exactly when Interactive’s alleged infringement began. 7. Interactive’s Additional Defenses to Recursion’s Breach of Contract Claim a. Whether Recursion Has Standing to Enforce Contracts Entered Into by Objectspace Interactive’s next grounds for summary judgment concern Recursion’s claim that Interactive breached the Voyager license agreements by failing to" }, { "docid": "22050298", "title": "", "text": "by calling sua sponte for en banc. Fortunately, such clear mistakes occur infrequently enough that our en banc resources should not be overly burdened. See IB Moore’s Federal Practice ¶ 0.404[4.-5], at 11-25 n. 11 (1996). Many circuits have confronted the issue but decided not to resolve it. See, e.g., LaShawn A., 87 F.3d at 1395 (\"Because the law-of-the-case doctrine alone precluded [reconsideration], we need not delve deeply into the interplay between the law-of-the-case and the law-of-the-circuit doctrines.”); Liberty Mut. Ins. v. Elgin Warehouse & Equip., 4 F.3d 567, 571 n. 7 (8th Cir.1993) (\"Arguably the en banc rule is incompatible with a subsequent panel deviating from the law of the case established by a prior panel decision.... However, ... we need not consider this issue ....\"); cf. Lacy v. Gardino, 791 F.2d 980, 985 (1st Cir.1986) (“We need not decide, however, whether the two habeas petitions are the same or different cases requiring the application of either the law of the case doctrine or stare decisis.\"). But the Fifth Circuit is a notable exception: It supplants the law of the case with law of the circuit, although there are some anomalous decisions. Compare Missouri Pac. R.R. v. Railroad Comm'n, 948 F.2d 179, 186 (5th Cir.1991) (\"We see no reason to reconsider our earlier decision____ [I]t is a 'well-known and longstanding rule of decision in this circuit that one panel cannot overrule another.’ ”) with Blair v. Sealift, Inc., 91 F.3d 755, 761 n. 26 (5th Cir.1996) (noting the \"wrinkle” that prior decisions “could either be considered the law of the case or the application of a 'prior' panel decision, i.e., the binding precedent of this circuit” (emphasis in original)). The Third Circuit has similarly expressed some doubt whether a panel may depart from the law of the case even when a prior opinion was clearly erroneous, which is akin to enforcing the law of the circuit principle. See Todd & Co. v. SEC, 637 F.2d 154, 157 & n. 4 (3d Cir.1980). . Commentators are divided on how to resolve this issue. Although noting that the relationship between the" }, { "docid": "3729579", "title": "", "text": "and noncontributing. In its brief, Willbros relies on an \"Other Insurance” clause from the main policy form in CNA’s Policy. But, for purposes of this appeal, CNA’s main policy is modified by an endorsement that applies when coverage involves an additional insured. Endorsements to a policy generally supersede and control over conflicting printed terms within the main policy. See Mesa Operating Co. v. Cal. Union Ins. Co., 986 S.W.2d 749, 754 (Tex.App. — Dallas 1999, pet. denied). Hence, for purposes of an analysis of \"other insurance” provisions applicable to an additional insured, the above-quoted \"Other Insurance” provision applies and not the provision discussed in Willbros’s brief. . The court commends counsel for CNA for his forthrightness in directing the court's attention to controlling precedent contrary to his position. . See Farmers Texas County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 82 (Tex.1997). EMILIO M. GARZA, Circuit Judge, with whom JENNIFER W. ELROD, Circuit Judge, joins, specially concurring: I fully agree with the panel opinion. Although I am inclined to disagree with Royal Insurance Co. of America v. Hartford Underwriters Insurance Co., 391 F.3d 639 (5th Cir.2004), we are bound by the decision because it is the settled law of this circuit and one panel of this court cannot overrule the decision of another panel. See FDIC v. Dawson, 4 F.3d 1303, 1307 (5th Cir.1993); Burlington N. R.R. v. Bhd. of Maint. of Way Employees, 961 F.2d 86, 89 (5th Cir.1992); Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.1991). Nonetheless, I encourage the court to revisit en banc our interpretation of what constitutes conflicting “other insurance” provisions under Hardware Dealers Mutual Fire Insurance Co. v. Farmers Insurance Exchange, 444 S.W.2d 583 (1969). Texas Supreme Court cases instruct that, when possible, we should focus on the plain language of the insurance policy. See Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Crocker, 246 S.W.3d 603, 606 (Tex.2008) (noting that insurance policies are construed according to the same rules of construction that apply to contracts generally); Utica Nat’l Ins. Co., 141 S.W.3d at 206 (citing numerous cases" }, { "docid": "16111803", "title": "", "text": "the plaintiff proves that the harassment is because of the victim’s sex, the sex of the harasser and victim is irrelevant. This panel, however, cannot review the merits of Appellant’s Title VII argument on a clean slate. We are bound by our decision in Garcia v. Elf Atochem No. Am., 28 F.3d 446, 451-52 (5th Cir.1994), and must therefore affirm the district court. Although our analysis in Garcia has been rejected by various district courts, we cannot overrule a prior panel’s decision. In this Circuit, one panel may not overrule the decision, right or wrong, of a prior panel in the absence of an intervening contrary or superseding decision by the Court en banc or the Supreme Court. Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.1991). This Circuit’s same-sex Title VII jurisprudence began with Giddens v. Shell Oil Co., 12 F.3d 208 (5th Cir.1993) (per curiam) (unpublished), cert. denied, — U.S. -, 115 S.Ct. 311, 130 L.Ed.2d 274 (1994). Although the holding in that case is not entirely clear, it appears that the Court ruled that male-on-male harassment with sexual overtones is not sex discrimination without a showing that an employer treated the plaintiff differently because of his sex. Next, in Garcia, we extended Giddens to bar all same-sex sexual harassment claims: Finally, we held in Giddens v. Shell Oil Co., No. 92-8533 [12 F.3d 208] (5th Cir. Dec. 6, 1993) (unpublished), that ‘[hjarassment by a male supervisor against a male subordinate does not state a claim under Title VII even though the harassment has sexual overtones. Title VII addresses gender discrimination.’ Accord Goluszek v. Smith, 697 F.Supp. 1452, 1456 (N.D.Ill.1988). Thus, what Locke did to Garcia could not in any event constitute sexual harassment within the purview of Title VII, and hence summary judgment in favor of all defendants was proper on this basis also. This discussion seems to indicate clearly that same-sex harassment claims are not viable under Title VII. When read in its proper context, however, this final paragraph of the Garcia opinion poses an interpretive problem. Because the Court had already found" }, { "docid": "18560195", "title": "", "text": "the United States Supreme Court in Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), has effectively overruled the decision of the Fifth Circuit in In re Goff. Third, the debtors argue that, even if In re Goff is a correct interpretation of section 541(c)(2), their retirement plans are spendthrift trusts under Texas law. None of these arguments is persuasive. We recognize that the federal courts have not uniformly embraced our decision in In re Goff. Compare In re Daniel, 771 F.2d 1352, 1360 (9th Cir.1985) (agreeing with In re Goff), cert. denied, 475 U.S. 1016, 106 S.Ct. 1199, 89 L.Ed.2d 313 (1986); In re Lichstrahl, 750 F.2d 1488, 1490 (11th Cir.1985) (same); In re Graham, 726 F.2d 1268, 1273 (8th Cir.1984) (same) with In re Lucas, 924 F.2d 597, 601 (6th Cir.1991) (rejecting In re Goff)) In re Moore, 907 F.2d 1476, 1479 (4th Cir.1990) (same). Nonetheless, we decline the debt ors’ invitation to overrule In re Goff. Even if we were convinced that In re Goff states an incorrect interpretation of section 541(c)(2), we still would have no authority to overrule an earlier decision of our Court. In this circuit, one panel may not overrule the decision — right or wrong — of a prior panel, absent en banc reconsideration or a superseding contrary decision of the Supreme Court. Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.1991); Brown v. United States, 890 F.2d 1329, 1336 (5th Cir.1989). The decision of the Supreme Court in Mackey v. Lanier Collections Agency & Serv., Inc. does not alter the precedential effect of In re Goff. In Mackey, the Supreme Court ruled that, while ERISA preempted a statute which specifically exempted funds in an employee benefit plan from garnishment, ERISA did not preempt a general garnishment statute to the extent that the statute applied to welfare benefit plans. The Court commented that the ERISA antialienation provision prevents creditors from reaching the funds in pension plans, but not welfare plans: Where Congress intended in ERISA to preclude a particular method" }, { "docid": "21990123", "title": "", "text": "in part and dissenting in part); FDIC v. Dawson, 4 F.3d 1303, 1307 (5th Cir.1993); Burlington N.R.R. v. Brotherhood of Maintenance of Way Employees, 961 F.2d 86, 89 (5th Cir.1992); Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.1991). The rule that one panel cannot overrule another panel is usually cited in the context of a discussion in which a party asks the court to “reexamine” an earlier Fifth Circuit decision or when a later panel is in disagreement with an earlier decision. However, it does not appear that the differing results in Makedwde and Daboub as to appropriate application of the limitations period are due to disagreement between the panels or even contrary interpretation of the applicable precedent. Daboub was decided less than three months after Makedwde. Although the court in Daboub discussed and rejected the continuing tort theory, it did so without analysis of Makedwde, the seminal cases in this area, or the split among the circuits. Judge Smith of the Fifth Circuit has said: [Ojur rule of orderliness comes into play when two panels become “ships passing in the night.” A subsequent panel may be unaware of an earlier holding and, consequently, may reach a contrary result. No interpretation is involved, as the later panel makes no mention of the earlier case. In such an instance, we can easily say that the later opinion is a nullity; any other rule would invite judicial chaos. Grabowski v. Jackson County Public Defenders Office, 47 F.3d 1386, 1400 n. 4 (5th Cir.1995) (J.Smith, concurring in part and dissenting in part). In light of the foregoing, Makedivde is the controlling precedent before the Court. Defendants are liable for acts of infringement, if any, committed within the three-year period prior to the filing of this lawsuit. Id. at 653-54 (footnotes omitted). This Court follows the reasoning of King Empire Court and thus follows the Fifth Circuit’s decision in Makedwde. Therefore, even if Recursion’s copyright infringement claim accrued more than three years prior to the date this action commenced, Recursion could still recover for acts of infringement occurring within three" }, { "docid": "21990122", "title": "", "text": "F.3d 180 (5th Cir.1994), the Fifth Circuit held that the statute of limitations does not bar claims that accrued within the three-year period prior to the commencement of the lawsuit, but that claims accruing more than three years before the action is filed are time-barred. Id. at 182. Just months later, a different Fifth Circuit panel held that the statute of limitations bars any claims brought three - years after the cause of action accrued. Daboub, 42 F.3d at 290-91. The district court in King Empire, Inc. v. Milan Courtyard Homes, Ltd., 173 F.Supp.2d 649 (S.D.Tex.2001) addressed the conflict between the Makedwde and Daboub decisions as follows: It is well established that one Fifth Circuit panel cannot overrule the decision of another panel; panel decisions may be overruled only by the Fifth Circuit sitting en banc or by a subsequent decision of the Supreme Court. E.g., Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997); Chabowski v. Jackson County Public Defenders Office, 47 F.3d 1386, 1400 n. 4 (5th Cir.1995) (J.Smith, concurring in part and dissenting in part); FDIC v. Dawson, 4 F.3d 1303, 1307 (5th Cir.1993); Burlington N.R.R. v. Brotherhood of Maintenance of Way Employees, 961 F.2d 86, 89 (5th Cir.1992); Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.1991). The rule that one panel cannot overrule another panel is usually cited in the context of a discussion in which a party asks the court to “reexamine” an earlier Fifth Circuit decision or when a later panel is in disagreement with an earlier decision. However, it does not appear that the differing results in Makedwde and Daboub as to appropriate application of the limitations period are due to disagreement between the panels or even contrary interpretation of the applicable precedent. Daboub was decided less than three months after Makedwde. Although the court in Daboub discussed and rejected the continuing tort theory, it did so without analysis of Makedwde, the seminal cases in this area, or the split among the circuits. Judge Smith of the Fifth Circuit has said: [Ojur rule of orderliness comes" }, { "docid": "20827730", "title": "", "text": "mislead fraud victims into believing that their applications for loans had been accepted). Our circuit has subsequently applied the analysis laid down in these cases in a number of circumstances. See, e.g., United States v. Arledge, 553 F.3d 881, 891 (5th Cir.2008); Bieganowski, 313 F.3d at 275; Mills, 199 F.3d 184; United States v. Evans, 148 F.3d 477, 480 (5th Cir.1998); United States v. Vontsteen, 872 F.2d 626, 627 (5th Cir.1989), superseded on other grounds, 950 F.2d 1086 (5th Cir.1992) (en banc). Rather than deciding this question based solely on Parr, we must look to our Fifth Circuit precedent interpreting Parr and the subsequent Supreme Court cases. “It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.” Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir.2008) (citation omitted). “Indeed, even if a panel’s interpretation of the law appears flawed, the rule of orderliness prevents a subsequent panel from declaring it void.” Id.; see also McClain v. Lufkin Indus., 649 F.3d 374, 385 (5th Cir.2011) (“This court’s rule of orderliness prevents one panel from overruling the decision of a prior panel.”); Barber v. Johnson, 145 F.3d 234, 237 (5th Cir.1998) (“Even if persuaded that [our prior panel opinion] is inconsistent with [an earlier Supreme Court opinion], we may not ignore the decision, for in this circuit one panel may not overrule the decision of a prior panel.”); Wilson v. Taylor, 658 F.2d 1021, 1034 (5th Cir.1981) (“It is the firm rule of this circuit that we cannot disregard the precedent set by a prior panel, even though we perceive error in the precedent.”). Indeed, in Jacobs, we specifically rejected the idea that later Supreme Court and other decisions that were not directly on point could alter the binding nature of our prior precedent. Jacobs, 548 F.3d at 378. Under our post-Parr precedent, the critical question is whether Traxler’s fraud was completed prior to the transmission" }, { "docid": "17161082", "title": "", "text": "did not discuss the retroactive application of Cage because the question was not an issue in the case.” Id. Although Smith was an unpublished decision, we are bound by its holding. See Local Rule 47.5.3 (“Unpublished opinions issued before January 1, 1996 are precedent”). A panel is not at liberty to disagree with the decision of a prior panel. Absent action by the Supreme Court, any error Brown sees in Smith may be corrected only by this court sitting en banc. FDIC v. Dawson, 4 F.3d 1303, 1307 (5th Cir.1993), cert. denied, 512 U.S. 1205, 114 S.Ct. 2673, 129 L.Ed.2d 809 (1994); Burlington Northern R.R. v. Brotherhood of Maintenance of Way Employees, 961 F.2d 86, 89 (5th Cir.1992), cert. denied, 506 U.S. 1071, 113 S.Ct. 1028, 122 L.Ed.2d 173 (1993). Accordingly, we hold that Brown may not invoke Cage to attack his conviction on collateral review. (2) Although we conclude that, under Fifth Circuit precedent, Teague bars the consideration of Brown’s Cage challenge on collateral review, we are persuaded to consider the federal district court’s alternate ground of dismissal, which was not addressed by the state courts: that Brown failed to demonstrate that the jury instruction was unconstitutional under Cage. We agrée. In Cage, the U.S. Supreme Court concluded that a Louisiana jury instruction on reasonable doubt was constitutionally defective because it improperly raised the degree of “doubt” that would demand acquittal in a criminal trial to something more than “reasonable” doubt. The challenged instruction in Cage read: If you entertain a reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, it is your duty to give him the benefit of that doubt and return a verdict of not guilty. Even where the evidence demonstrates a probability of guilt, if it does not establish such guilt beyond a reasonable doubt, you must acquit the accused. This doubt, however, must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and con-jectüíe. It must be such doubt as would give rise to a grave uncertainty," } ]

[ { "docid": "22657226", "title": "", "text": "a federal court’s power to disturb state-court convictions. The United States District Court for the Northern District of Texas, after reviewing the evidence before the state trial court, determined that petitioner failed to establish a constitutional violation warranting habeas relief. The Court of Appeals for the Fifth Circuit, concluding there was insufficient merit to the case, denied a certificate of appeal- ability (COA) from the District Court’s determination. The COA denial is the subject of our decision. At issue here are the standards AEDPA imposes before a court of appeals may issue a COA to review a denial of habeas relief in the district court. Congress mandates that a prisoner seeking postconviction relief under 28 U. S. C. § 2254 has no automatic right to appeal a district court’s denial or dismissal of the petition. Instead, petitioner must first seek and obtain a COA. In resolving this case we decide again that when a habeas applicant seeks permission to initiate appellate review of the dismissal of his petition, the court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims. Slack v. McDaniel, 529 U. S. 473, 481 (2000). Consistent with our prior precedent and the text of the habeas corpus statute, we reiterate that a prisoner seeking a COA need only demonstrate “a substantial showing of the denial of a constitutional right.” 28 U. S. C. §2253(c)(2). A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. Slack, supra, at 484. Applying these principles to petitioner’s application, we conclude a COA should have issued. I A Petitioner, his wife Dorothy Miller-El, and one Kenneth Flowers robbed a Holiday Inn in Dallas, Texas. They emptied the cash drawers and ordered two employees, Doug Walker and Donald Hall, to lie on the floor. Walker and Hall were gagged with strips of fabric, and their hands and feet were bound. Petitioner asked Flowers if he was going" } ]

[ { "docid": "22911937", "title": "", "text": "petition for a writ of habeas corpus, and the Court gave the parties approximately a month to notify it if they sought additional discovery and a hearing. Id. at 791. On January 18, 2002, however, Judge Dalzell gave way to the Commonwealth’s fourth motion seeking his recusal. See Lambert v. Blackwell, 205 F.R.D. 180 (E.D.Pa.2002). Lambert’s petition was consequently transferred to Judge Anita Brody of the Eastern District of Pennsylvania. After holding a hearing on the Commonwealth’s motion to dismiss, Judge Brody denied Lambert’s petition and dismissed it with prejudice. Judge Brody concluded that, contrary to Judge Dalzell’s previous decision, the PCRA Court’s determinations were not null and void and were entitled to deference under AEDPA. After reviewing Lambert’s claims accordingly, Judge Bro-dy concluded that they were without merit. The District Court granted Lambert a certificate of appealability, and Lambert timely appealed. The Commonwealth also timely filed a cross-appeal. II. JURISDICTION AND STANDARD OF REVIEW The District Court exercised jurisdiction under 28 U.S.C. § 2254, and the District Court’s order dismissing Lambert’s habeas petition is a final decision for purposes of 28 U.S.C. § 1291. Yet Lambert must surmount an additional hurdle before we can properly exercise appellate jurisdiction over her appeal. We only have jurisdiction if this Court or a District Court has properly issued a certificate of appealability pursuant to 28 U.S.C. § 2253(c). See United States v. Cepero, 224 F.3d 256, 261-62 (3d Cir.2000) (en banc). A COA may issue only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If “a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In addition, a COA must “indicate which specific issue or issues satisfy” that standard. 28 U.S.C. § 2253(c)(3). Here, the District Court failed to specify which of the voluminous issues Lambert raised in her habeas petition" }, { "docid": "11812487", "title": "", "text": "ORDER DENYING CERTIFICATE OF APPEALABILITY PAUL KELLY, JR., Circuit Judge. Petitioner Daniel Dill, a state prisoner proceeding pro se, seeks a certificate of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habe-as petition. We deny his request for a COA and dismiss the appeal. On October 29, 2003, Mr. Dill was convicted by a jury in Oklahoma state court on five felony counts. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his conviction on January 4, 2005. Mr. Dill did not seek a writ of certiorari with the United States Supreme Court. On March 23, 2006, he applied for post-conviction relief in state district court. See Moore v. Gibson, 27 P.3d 483, 484 n. 1 (Okla.Crim.App.2001) (explaining that “an application for post-conviction relief in a non-capital case is always deemed to be timely filed” because there are no applicable time limitations). The motion was denied and that decision was affirmed by the OCCA on February 21, 2007. On April 4, 2007, Mr. Dill submitted his federal habeas petition to prison officials for mailing, and it was filed on April 16, 2007. The district court determined that the petition was time-barred under the one-year limitations period in 28 U.S.C. § 2244(d), and that equitable tolling did not apply. As the district court dismissed the habeas petition on procedural grounds, we may issue a COA only if Mr. Dill makes a substantial showing that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see 28 U.S.C. § 2253(c)(2). ■ [1] The one-year limitations period for filing a federal habeas petition runs from the “date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). A conviction is “final” (and the one-year limitations period begins to" }, { "docid": "15898422", "title": "", "text": "Mills. The Magistrate Judge recommended that the writ be granted on the condition that the Commonwealth either conduct a new sentencing hearing within 120 days or impose life imprisonment. The Commonwealth objected to the recommendation by arguing for the first time that the Mills claim should be denied as procedurally defaulted given Szuchon’s failure to exhaust the claim and the present unavailability of state remedies. The District Court summarily overruled the objections, adopted the Report and Recom- , mendation, granted the writ in accordance with the Magistrate Judge’s recommendation, and denied Szuchon’s remaining claims. The District Court also issued a certificate of appealability but failed to specify the issues on which Szuchon had made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(3) (“The certificate of appealability ... shall indicate which specific issue or issues satisfy the showing required .... ”). The Commonwealth timely appealed (C.A. No. 00-9000), and Szuchon timely cross-appealed (C.A. No. 00-9001). II. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction pursuant to 28 U.S.C. § 2254(a). We have jurisdiction over the Commonwealth’s appeal pursuant to 28 U.S.C. § 1291. As to Szuchon’s cross-appeal, we have jurisdiction pursuant to 28 U.S.C. §§ 2253 and 1291 over the issues that satisfy the certificate of appealability standard. See United States v. Cepero, 224 F.3d 256, 261-62 (3d Cir.2000) (en banc) (holding that issuance of a certificate of appealability is a jurisdictional requirement). Because the District Court failed to specify the issues for appeal, we will undertake that analysis here. A certificate of appealability may issue only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If “a district court has rejected the constitutional claims on the merits, the showing required to satisfy, § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Our review is plenary on the merits of the claims over which we have jurisdiction," }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "7870289", "title": "", "text": "(Michie 2000) (vesting exclusive jurisdiction in the Supreme Court of Virginia of petitions for writs of habeas corpus by petitioners held under a sentence of death), and was denied relief. Thereafter, he filed a petition pursuant to 28 U.S.C.A. § 2254 in the United States District Court for the Western District of Virginia. On March 28, 2002, the district court denied relief on that petition. Swisher seeks a COA as to numerous claims raised in the district court. We address the following three claims below: (1) that the Commonwealth knowingly elicited perjurious testimony; (2) that Swisher received ineffective assistance of counsel; and (3) that the Commonwealth failed to turn over Brady material. II. We may only issue a COA if Swisher has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West Supp.2002). Absent a COA, “an appeal may not be taken” to this court from the district court’s denial of relief on the § 2254 petition. Id. § 2253(c)(1); cf. Miller-El v. Cockrell, - U.S. -, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (noting that a COA is “a jurisdictional prerequisite” to consideration of an appeal by a prisoner denied habeas relief in the district court). To make the requisite substantial showing, “a petitioner must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.’ ’” ” Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983))). The Supreme Court has held that “[wjhere a district court has rejected [a petitioner’s] constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, “[w]hen the district court denies a habeas petition on procedural" }, { "docid": "15107164", "title": "", "text": "Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny William Cooper, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(d)(3) motion seeking relief from the district court’s order denying Cooper’s 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Cooper has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED" }, { "docid": "11165303", "title": "", "text": "court’s decision without a COA. Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029; Lockett, 711 F.3d at 1249. The district court dismissed each of these claims on procedural grounds and refused to grant a COA for any of them. Although Mr. Frost does not explicitly seek a COA, we construe his filing of a notice of appeal as a request for a COA. See Fed. R.App. P. 22(b)(2) (“If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals.”); see also United States v. Gordon, 172 F.3d 753, 753-54 (10th Cir.1999) (citing Fed. R.App. P. 22(b)(2)). 1. Standard for Granting COA Under AEDPA, we may not issue a COA unless “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253; see also Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). When a district court dismisses a petition on procedural grounds “without reaching the prisoner’s underlying constitutional claim,” a COA cannot issue unless the petitioner shows both (1) “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right” and (2) “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; accord Dulworth v. Jones, 496 F.3d 1133, 1137 (10th Cir.2007). Rather than addressing these two threshold re quirements in order, we may “resolve the issue whose answer is more apparent from the record and arguments.” Slack, 529 U.S. at 485, 120 S.Ct. 1595. 2. Legal Background a. Exhaustion and anticipatory procedural bar A federal court cannot grant a state prisoner’s habeas petition unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b)(1). Relevant here, a state prisoner must give state courts “one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct." }, { "docid": "1287410", "title": "", "text": "ORDER DENYING CERTIFICATE OF APPEALABILITY TIMOTHY M. TYMKOVICH, Circuit Judge. Jonathan Lee Roderick, a state prisoner appearing pro se, seeks a certificate of appealability (COA), see 28 U.S.C. § 2253(c), allowing him to appeal the order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Because we determine Roderick has not established that “jurists of reason could conclude that the District Court’s dismissal on procedural grounds was debatable or incorrect,” Slack v. McDaniel, 529 U.S. 473, 485, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), we DENY a COA and DISMISS the appeal. I. Background Roderick was convicted in Wyoming state court of felony murder, aggravated burglary, and unauthorized use of a vehicle. The Wyoming Supreme Court affirmed Roderick’s conviction in 1993, except as to the judgment and sentence, which it modified by vacating a fifteen to twenty-five year term for aggravated burglary. See Roderick v. State, 858 P.2d 538, 541 (Wyo.1993). Roderick then filed a state court petition for post-conviction relief in 2007. That petition was denied by the Wyoming state courts. Finally, in 2008 Roderick filed a Petition for Writ of Review, which the Wyoming Supreme Court also denied. Roderick filed the instant § 2254 petition in federal district court in July 2008. The district court concluded the petition was time-barred and dismissed the case. See 28 U.S.C. § 2244(d). This appeal followed. II. Discussion Where a district court dismisses a § 2254 petition on procedural grounds, a petitioner seeking a COA must establish that reasonable jurists would find it debat able both whether the district court was correct in its procedural ruling, and whether the petition states a valid claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595; Fleming v. Evans, 481 F.3d 1249, 1254-56 (10th Cir.2007). If a procedural bar is present and the district court correctly invokes it to dispose of the case, “a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed" }, { "docid": "15137365", "title": "", "text": "unreasonable determination of the facts based on the evidence presented. Accordingly, the Court DENIES petitioner’s first ground for relief as meritless. D. Certificate of Appealability An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, et al., 105 F.3d 1063 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certificate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. This issue was central to petitioner’s trial and this Court’s resolution of the issue is central to this habeas proceeding. This claim not only is fact-intensive but also implicates numerous fundamental rights. That being so, the Court is more than satisfied that reasonable jurists could find its" }, { "docid": "4512398", "title": "", "text": "ORDER AND JUDGMENT McKAY, Circuit Judges. After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. State prisoner Dennis Lucero seeks to appeal from the dismissal of his 28 U.S.C. § 2254 habeas petition. Petitioner pleaded guilty to second degree murder and aggravated robbery, for which he was sentenced to consecutive terms of thirty and sixteen years’ imprisonment, respectively. Petitioner sought a writ of habeas corpus in the United States District Court for the District of Colorado, alleging that his due process and equal protection rights were violated because he was sentenced to consecutive rather than concurrent terms. The district court denied the petition, holding that Petitioner had filed the petition well after the one-year statute of limitations under 28 U.S.C. § 2244(d) and had not shown the extraordinary circumstances necessary to invoke an equitable tolling of the statute. The court subsequently denied Petitioner’s Rule 59(c) motion to alter or amend the judgment, and further declined to grant a certificate of appealability required by 18 U.S.C. § 2258(c) to appeal the dismissal of a § 2254 petition. Petitioner then applied to this court for a certificate of appealability. In order for this court to grant a certificate of appealability, Petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, Petitioner must demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). It is true that “ § 2244(d) is not jurisdictional and as a limitation may be subject to equitable tolling.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). However, equitable tolling" }, { "docid": "2875794", "title": "", "text": "action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the con stitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certifícate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. Because the Court agrees with and adopts the Magistrate Judge’s decision to sua sponte recognize and enforce the default of Petitioner’s first ground for relief, and because the Court views as a “close call” whether the dismissal of prospective juror Wells was proper under Wainwright v. Witt, 469 U.S. at 424,105 S.Ct. 844, even though the Court was prevented by the procedural default from addressing the merits of the claim, the Court is satisfied that reasonable jurists could find debatable" }, { "docid": "6028979", "title": "", "text": "claims unless we first determine with regard to each claim that Mayfield has made “a substantial showing of the denial of a constitutional right” justifying issuance of a COA. 28 U.S.C. § 2253(c) (2000); see also Petrocelii v. Angelone, 248 F.3d 877, 883 (9th Cir.2001) (“[Ejach issue sought to be appealed under AEDPA must be ruled on separately ... on the request for a COA.”); Morns v. Woodford, 229 F.3d 775, 779 (9th Cir.2000) (“Unlike a [Certificate of Probable Cause], which allows a party to appeal an entire petition, a COA is granted on an issue-by-issue basis.”), cert, denied, - U.S. -, 121 S.Ct. 2238, 150 L.Ed.2d 227 (2001). The Supreme Court set forth the standard for issuance of a COA in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Where, as here, the district court denies a habeas corpus petition on the merits, rather than on procedural grounds, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. at 484, 120 S.Ct. 1595. “[T]he nature of the penalty is a proper consideration in determining whether to issue a certificate of [appealability].” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Slack, 529 U.S. at 483, 120 5.Ct. 1595 (“Except for substituting the word ‘constitutional’ for the word ‘federal,’ § 2253 is a codification of the CPC standard announced in Barefoot ... ”). Accordingly, we resolve any doubt regarding whether to issue a COA in favor of May-field. See Petrocelii, 248 F.3d at 884; Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir.2000). Pre-AEDPA standards of review govern our consideration on the merits because Mayfield filed his habeas corpus petition prior to AEDPA’s effective date. Dubria v. Smith, 224 F.3d 995, 1000 n. 1 (9th Cir.2000) (en banc), cert, denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001); see also Slack, 529 U.S. at 481, 120 S.Ct. 1595 (noting that the date the habeas corpus petition was filed determines whether the pre-AEDPA or post-AEDPA version of §" }, { "docid": "21731530", "title": "", "text": "court then issued a certificate of probable cause for appeal. Petitioner then filed a notice of appeal. On October 12, 2000, this Court entered an order ruling that the AEDPA applies to this case, and that the district court’s issuance of a certificate of probable cause under the pre-AEDPA version of 28 U.S.C. § 2253(c) was ineffective. We elected to treat Cooey’s brief as an application for a certificate of appealability. After expressing our tentative view that Cooey had not made a “substantial showing of the denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2) & (3) with respect to any of the issues raised, we directed Cooey to show cause why we should not deny the application for a certificate. Attached to our order was an appendix summarizing our tentative view as to each issue. The parties filed their respective briefs responding to the show cause order, and the matter was argued on January 30, 2002. II.Application for Certificate of Appealability Under the AEDPA, an appeal from the denial of a writ of habeas corpus may not be taken unless a circuit justice or judge issues a certificate of appealability. A certificate of appealability may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We may also reject an issue for appeal if the procedural default doctrine applies. See Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). However, this determination has two components, “one directed at the underlying constitutional claims and one directed at the district court’s procedural holding.” Id. at 483, 120 S.Ct. 1595. When the district court denies a habeas petition on procedural grounds alone, the certificate of appealability should issue when the applicant “shows, at least, that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 484, 120 S.Ct. 1595. Cooey raises the following issues in his brief as broadly stated in seven categories, with numerous subissues, and asks us to grant a certificate of" }, { "docid": "22880481", "title": "", "text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In that petition, Houser alleged due process violations in connection with prison disciplinary proceeding # 20020003898. Houser has demonstrated that reasonable jurists could debate whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000). However, he fails to establish that reasonable jurists could debate whether he has claimed a valid deprivation of his constitutional rights. See id. COA IS DENIED. The district court found that Houser failed to exhaust his state remedies because he had not filed his Step 1 grievance in a timely manner and, further, that he had failed to file a Step 2 grievance. Both of these findings are rendered questionable by the record, which indicates that Houser’s Step 1 grievance was received on the first working day beyond the fifteen-day period allotted for filing grievances and, per the Offender Grievance Operations Manual, was therefore timely. Also, contrary to the district court’s finding, the record contains a copy of Houser’s Step 2 grievance and the response issued by prison authorities. The district court’s determination of failure to exhaust is at best suspect. However, for a COA to issue, Houser must prove not only that reasonable jurists could debate whether the district court was correct in its procedural ruling, but also that reasonable jurists could find it debatable that the petition states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack, 529 at 484, 120 S.Ct. at 1603-04. This coequal portion of the appealability test “gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying claims.” Slack, id. Accordingly, we must consider whether “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Performing the" }, { "docid": "21868709", "title": "", "text": "that he had motioned to his pocket when he was in the store, the jury could also reasonably infer that the gun was physically available and accessible to him during the in-store robbery. In short, viewing all the testimony in the light most favorable to the prosecution, the court concludes that the Delaware Supreme Court did not unreasonably apply Jackson in finding sufficient evidence to sustain petitioner’s weapons conviction. Thus, this claim does not warrant habeas relief under § 2254(d)(1). Y. CERTIFICATE OF APPEALABILITY Finally, the court must decide whether to issue a certificate of appealability. See Third Circuit Local Appellate Rule 22.2. The court may issue a certificate of appeal-ability only when a petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates “that reasonable jurists would find the district court’s assessment of the denial of a constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, when a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claim, the prisoner must demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. For the reasons stated above, the court concludes that petitioner is not entitled to federal habeas relief for any of his claims. Reasonable jurists would not find these conclusions unreasonable. Consequently, petitioner has failed to make a substantial showing of the denial of a constitutional right, and a certificate of appealability will not be issued. VI. CONCLUSION For the foregoing reasons, petitioner’s application for habeas relief filed pursuant to 28 U.S.C. § 2254 will be denied. An appropriate order will be entered. ORDER For the reasons set forth in the memorandum opinion issued this date, IT IS HEREBY ORDERED that: 1. Petitioner Claude A. Jones’ application for a writ of habeas corpus pursuant to 28" }, { "docid": "15898423", "title": "", "text": "U.S.C. § 2254(a). We have jurisdiction over the Commonwealth’s appeal pursuant to 28 U.S.C. § 1291. As to Szuchon’s cross-appeal, we have jurisdiction pursuant to 28 U.S.C. §§ 2253 and 1291 over the issues that satisfy the certificate of appealability standard. See United States v. Cepero, 224 F.3d 256, 261-62 (3d Cir.2000) (en banc) (holding that issuance of a certificate of appealability is a jurisdictional requirement). Because the District Court failed to specify the issues for appeal, we will undertake that analysis here. A certificate of appealability may issue only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If “a district court has rejected the constitutional claims on the merits, the showing required to satisfy, § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Our review is plenary on the merits of the claims over which we have jurisdiction, as the District Court relied exclusively on the state court record in deciding the petition and did not hold an evidentiary hearing. Hartey v. Vaughn, 186 F.3d 367, 371 (3d Cir.1999). In addition, Szuchon filed his initial petition prior to AED-PA’s enactment, and the parties do not dispute that pre-AEDPA law governs Szuchoris claims. See Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Before AEDPA, state court factual findings were presumed correct unless, inter alia, they were not “ ‘fairly supported by the record.’” Pemberthy v. Beyer, 19 F.3d 857, 864 (3d Cir.1994) (quoting the former 28 U.S.C. § 2254(d)(8)). State court legal conclusions were reviewed de novo, as were mixed questions of law and fact. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir.1999). III. TRIAL CLAIMS We first address Szuchon’s cross-appeal from the denial of his claims of error in connection with the trial. His claims involve his right to due process, and his contention that psychiatric evidence was not properly obtained and was improperly used at" }, { "docid": "23518656", "title": "", "text": "addressed Mr. Adams’ contention that pursuant to Houston v. Lack, his second state petition was “filed” when he placed the petition in the mail. Adopting this argument would toll the federal statute of limitations long enough to make Mr. Adams’ federal habeas petition timely. We granted a certificate of appealability, vacated the district court’s order, and remanded for a determination of this issue. On remand, the district court held Houston v. Lack did not apply in this case, and again found Mr. Adams’ federal petition untimely. We granted a certificate of ap-pealability on this issue, and appointed counsel for Mr. Adams for the purposes of this appeal. DISCUSSION Because the question presented here is a legal one, our review is de novo. See Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir.1999), cert. denied, — U.S. —, 120 S.Ct. 944, 145 L.Ed.2d 820 (2000). As an initial matter, we must determine if we have jurisdiction over this appeal. Appellate review of the dismissal of a habeas petition is controlled by 28 U.S.C. § 2253, which requires the issuance of a certificate of appealability before an appeal can proceed in our court. See 28 U.S.C. § 2253(c)(1)(A). “A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As mentioned earlier, we granted a certificate of appealability on the issue of the timeliness of Mr. Adams’ federal petition. However, [w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a [certificate of appeal-ability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Therefore, the determination of whether a certificate of appealability should issue in this case must have “two components, one directed at" }, { "docid": "22217607", "title": "", "text": "psychiatric reports, constituted evidence with sufficient reliability to support the Board’s denial of parole. Therefore we cannot conclude that the state court’s decision upholding this denial was “contrary to, or involved an unreasonable application of, clearly established federal law” or “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). II. Rosas also contends that he is entitled to habeas relief because his guilty plea was not knowing and voluntary, thereby denying him due process and effective assistance of counsel at sentencing. The district court dismissed this claim as time-barred and later denied Rosas’s request for a certificate of appealability on the issue. Unlike Rosas’s claim for denial of parole, the challenge to his underlying conviction “arises out of process issued by a State court,” and therefore Rosas must obtain a certificate of appealability in order for us to entertain his appeal. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability should issue only if the petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the district court dismisses the petition on procedural grounds, a certificate of appealability should issue only if the petitioner can show: (1) “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling”; and (2) “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Rosas has failed to meet this standard with respect to the district court’s resolution of the statute of limitations issue. The statute of limitations on habeas corpus petitions filed by state prisoners in federal court is one year. 28 U.S.C. § 2244(d)(1). State prisoners like Rosas, whose convictions became final prior to the enactment of this one-year statute of limitations, had until April 24,1997 to file their petitions. Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir.2001). Rosas did not file a petition challenging his sentence until 2000. Moreover, nothing in the record suggests" }, { "docid": "12817478", "title": "", "text": "as well as a certificate of appealability. Gonzales v. McKune, 76 F.Supp.2d. 1222, 1229 (D.Kan.1999). In December 1999, Gonzales filed notice of appeal seeking review by this court. DISCUSSION I. Standard of Review and Certificate of Appealability The Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies to Gonzales’s case because he filed his § 2254 petition after April 24, 1996. See Hooks v. Ward, 184 F.3d 1206, 1213 (10th Cir.1999). Under AEDPA, Gonzales must obtain a Certificate of Appealability (“COA”) before he can appeal “the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court.” 28 U.S.C. § 2253(c)(1)(A). He is not entitled to a COA unless he can make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court rejected his § 2254 petition on the merits, to satisfy § 2253(c) Gonzales must “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). We construe Gonzales’s notice of appeal, filed on December 30, 1999, to be a request for a COA, and because he has met the standard set forth in Slack, his request for a COA is granted. The standard of review under AEDPA is set forth in 28 U.S.C. § 2254(d), which provides: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Claims of ineffective assistance of counsel involve mixed questions" }, { "docid": "23657085", "title": "", "text": "in both habeas corpus proceedings and other contexts”). We begin our discussion by setting forth the limited circumstance under which a court may issue a COA. The right to appeal is governed by the COA requirements set forth in 28 U.S.C. § 2253(c): (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 28 U.S.C. § 2253(c). Under this limited provision, if a district court denies a habeas petition on procedural grounds without reaching the petitioner’s underlying constitutional claims, a COA should issue only if the petitioner shows “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 1601, 146 L.Ed.2d 542 (2000). “[B]oth showings [must] be made before the court of appeals may entertain the appeal.” Id. at 485, 120 S.Ct. at 1604. If the procedural bar is obvious and the district court correctly invoked it to dispose of the case, “a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. at 484, 120 S.Ct. at 1604. The court may first resolve the issue whose answer is more apparent from the record and the arguments. Id. at 485, 120 S.Ct. at 1604. “The recognition that the court will not pass upon a constitutional question" } ]

[ { "docid": "17473296", "title": "", "text": "the costs of the litigation, or misrepresented any fact or law to this Court or to opposing counsel. II. Attorneys’ Fee Award and Reimbursable Costs: To determine the amount of a reasonable attorney’s fee award, courts apply the “lodestar approach”, under which the number of hours an attorney reasonably expended on a litigation is multiplied by a reasonable hourly rate. See, e.g., City of Burlington v. Dague, 505 U.S. 557, 559, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); Grant v. Martinez 973 F.2d 96, 99 (2d Cir.1992), cert. denied, sub nom. Bethlehem Steel Corp. v. Grant, 506 U.S. 1053, 113 S.Ct. 978, 122 L.Ed.2d 132 (1993); Toys “R” Us, Inc. v. Abir, No. 97 Civ. 8673, 1999 WL 61817 (S.D.N.Y. Feb.10, 1999). Reasonable hourly rates should be commensurate with the prevailing fees for “similar services by lawyers of reasonably comparable skill, experience and reputation” in the relevant market. Williams v. New York City Housing Auth., 975 F.Supp. 317, 322 (S.D.N.Y.1997) (quoting Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). The relevant marketplace in this case is the Southern District of New York, the judicial district in which this Court presides. See Luciano v. Olsten Corp., 109 F.3d 111, 115-16 (2d Cir.1997). A party must submit to the court contemporaneous time records as a prerequisite for recovering attorney fees, specifying “for each attorney, the date, the hours expended, and the nature of the work done.” New York State Ass’n for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir.1983); accord F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1265 (2d Cir.1987). The actual original time sheets are not necessary■; submitting an affidavit and attaching a computer printout of the pertinent contemporaneous time records is acceptable. See Gucci Am., Inc. v. Rebecca Gold Enters., Inc., No. 89 Civ. 4736 (BN), 1993 WL 88270, at *3 (S.D.N.Y. March 23, 1993) (citation omitted). Further, while the offered records do not have to be extremely detailed, they should “identify the general subject matter” of the work performed. Williams, 975 F.Supp. at 327 (citing" } ]

[ { "docid": "1498117", "title": "", "text": "research, messenger services, contract printing, binding, postage, travel, meals, and certain telephone calls. Defendant raises several objections to the fee application. He contends: (1) that the application should be denied in toto, claiming that it fails to meet the contemporaneous time records requirement of New York State Ass’n for Retarded Children v. Carey (2d Cir.1983) 711 F.2d 1136, 1147-48; (2) that the hourly rates at which compensation is sought are excessive; (3) that an excessive number of hours was spent on certain aspects of the litigation and, further, that the recovery should be limited to the time spent on claims against Weber, the defendant against whom plaintiff prevailed; and (4) that the recovery sought for certain costs and disbursements is either unreasonable or altogether unwarranted. DISCUSSION Before addressing the objections raised by defendant, we briefly review the general principles that guide our consideration of the application. As the Supreme Court articulated in Missouri v. Jenkins (1989) 491 U.S. 274, 286, 109 S.Ct. 2463, 2470, 105 L.Ed.2d 229 (citations omitted): A reasonable attorney’s fee under § 1988 is one calculated on the basis of rates and practices prevailing in the relevant market, i.e., “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation,” and one that grants the successful civil rights plaintiff a “fully compensatory fee,” comparable to what is “traditional with attorneys compensated by a fee-paying client.” In this regard, the “most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart (1983) 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40. This “lodestar” amount may then be enhanced by means of a multiplier or reduced based on the circumstances of the particular litigation. See Pennsylvania v. Delaware Valley Citizens’ Council (1987) 483 U.S. 711, 729-31, 107 S.Ct. 3078, 3088-90, 97 L.Ed.2d 585; Blum v. Stenson (1984) 465 U.S. 886, 899, 104 S.Ct. 1541, 1549, 79 L.Ed.2d 891. Here, plaintiff does not request an enhancement. (1) Contemporaneous" }, { "docid": "16126603", "title": "", "text": "of representation, and (4) the results obtained, these factors normally cannot serve as independent bases for increasing the fee award above the lodestar amount. See, e.g., Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565,106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (Delaware I); Blum v. Stenson, 465 U.S. 886, 898-900, 104 S.Ct. 1541, 1548-1550, 79 L.Ed.2d 891 (1984). The Supreme Court, however, has stated that upward adjustments of the lodestar figure are permissible “in certain ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and detailed findings by the lower courts.” Delaware I, 478 U.S. at 565, 106 S.Ct. at 3098. We find that the lodestar approach, including the possibility of adjustments in rare and exceptional circumstances, is an appropriate method to use in calculating reasonable compensation under § 330. See In re Manoa Fin. Co., 853 F.2d at 691. The more difficult question is what the fee applicant must show to establish that rare and exceptional circumstances exist. We do not attempt a comprehensive answer to this question. Rather, our focus in this case is on whether and when the quality of representation or the results obtained can constitute a basis for fee enhancement. We conclude that these factors can justify a fee enhancement. Because the lodestar amount may already compensate the applicant for exceptionally good service and results, however, the fee applicant must do more than establish outstanding service and results. The applicant also must establish that the quality of service rendered and the results obtained were superior to what one reasonably should expect in light of the hourly rates charged and the number of hours expended. See Blum, 465 U.S. at 899, 104 S.Ct. at 1549; see also Copeland v. Marshall, 641 F.2d 880, 893-94 (D.C.Cir.1980) (“A quality adjustment is appropriate only when the representation is unusually good or bad, taking into account the level of skill normally expected of an attorney commanding the hourly rate used to compute the ‘lodestar.’ ” (emphasis in original));' In re Energy Co-op, 95 B.R. 961, 965 (Bankr.N.D.Ill.1988) (denying enhancement because high quality" }, { "docid": "3945235", "title": "", "text": "bar to recovery of attorney’s fees); the only question is the amount. The fee applicant bears the burden of documenting to the satisfaction of the district court “ ‘the appropriate hours expended and hourly rates.’ ” Zabkowicz v. West Bend Co., 789 F.2d 540, 548 & n. 8 (7th Cir.1986) (Title VII action). Further, the applicant is expected to exercise “billing judgment” in calculating his or her fee; excessive, redundant or otherwise unnecessary hours are to be omitted from the fee submission, Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983), and the applicant should command no more than an appropriate market rate, see Blum v. Stenson, 465 U.S. 886, 895 & n. 11, 104 S.Ct. 1541, 1547 & n. 11, 79 L.Ed.2d 891 (1984). See also Kirchoff v. Flynn, 786 F.2d 320, 325 (7th Cir.1986) (“billing judgment” involves a complex array of considerations); Kritzer, et al., Understanding the Costs of Litigation: The Case of the Hourly-Fee Lawyer, 1984 Am. Bar Found. Research J. 559. The respondent then may challenge the reasonableness or accuracy of the rates or hours. See Blum v. Stenson, 465 U.S. at 892 n. 5, 104 S.Ct. at 1545 n. 5. “ ‘When ... the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product [rate times hours ] is presumed to be the reasonable fee’ to which counsel is entitled.” Pennsylvania v. Delaware Valley Citizens’ Council For Clean Air, — U.S. —, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (emphasis in original), quoting Blum v. Stenson, 465 U.S. at 897, 104 S.Ct. at 1548. This is in keeping with Congress’ intent that it is “necessary to compensate lawyers for all time reasonably expended on a case” “[i]n order to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances.” City of Riverside v. Rivera, — U.S. —, 106 S.Ct. 2686, 2696, 91 L.Ed.2d 466 (1986) (footnote omitted). The district court’s objective is to determine the market rate for the services reasonably" }, { "docid": "12486895", "title": "", "text": "5908, 5913. Missouri v. Jenkins, — U.S. -, 109 S.Ct. 2463, 2470, 105 L.Ed.2d 229 (1989). The lodestar method is used to establish the amount of an attorney’s fees' award under the federal civil rights fee shifting statute. Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 945, 103 L.Ed.2d 67 (1989); Hensley v. Eckerhart, supra, 461 U.S. at 433, 103 S.Ct. at 1939. The lodestar is calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate of compensation for each attorney involved. This calculation serves as a useful starting point for determining the amount of a reasonable fee, as it provides an objective basis on which to make an initial estimate of the value of a lawyer’s services. Hensley v. Eckerhart, supra, 461 U.S. at 433, 103 S.Ct. at 1939. The ultimate amount of the fee must be determined on the facts of each case, id. at 429, 103 S.Ct. at 1937, and the lodestar amount may be adjusted based on the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). E.g., Blanchard v. Bergeron, supra, 109 S.Ct. at 943-45. Nevertheless, once the applicant for a fee award has established the reasonableness of the claimed rate and the number of hours expended, the resulting lodestar figure is presumed to be the reasonable fee to which counsel is entitled. Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 3097, 92 L.Ed.2d 439 (1986) (“Delaware Valley I”); Blum v. Stenson, supra, 465 U.S. at 897, 104 S.Ct. at 1548. In this Circuit, an application for attorney’s fees “should normally be disallowed unless accompanied by contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done.” New York State Association for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir.1983). Contemporaneous time records are necessary so that the Court is not faced with an impossible task when asked to determine an appropriate fee amount, and lawyers are not required to" }, { "docid": "16661433", "title": "", "text": "work done, and the time expended.” Cruz v. Local Union No. S of Int’l Bhd. of Elec. Workers, 34 F.3d at 1160; see also S.J. Berwin & Co. v. Evergreen Entertainment Group, Inc., No. 92 Civ. 6209(WK), 1994 WL 501753 at *2 (S.D.N.Y. Sept.14, 1994); David v. Sullivan, 777 F.Supp. 212, 223 (E.D.N.Y.1991). The hourly rates are to be determined by the rates “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Luciano v. Olsten Corp., 109 F.3d at 115 (quoting Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 1547 n. 11, 79 L.Ed.2d 891 (1984)). The applicable community is the district in which the court sits, id., and while affidavits from other similarly situated attorneys are “desirable,” they are not indispensable in order to establish the appropriate hourly rate. Cruz v. Local Union No. 3 of Int’l Bhd. of Elec. Workers, 34 F.3d at 1160. A court may rely on its own knowledge of hourly rates in the community or may consider awards made in other eases. Id.; Association for Retarded Citizens of Connecticut, Inc. v. Thorne, 68 F.3d 547, 554 (2d Cir.1995). After calculating the lodestar amount, a court may increase or reduce it on the basis of “subjective factors, including ‘the level of complexity of the issues involved, the skill of the attorneys involved, overstaffing and inflated hours.’” Fund Comm’n Svc., II, Inc. v. Westpac Banking Co., 1996 WL 469660 at *6 (quoting Bourne of New York City, Inc. v. AmBase Corp., 161 F.R.D. at 266-67). However, there is a “ ‘strong presumption’ that the lodestar represents the ‘reasonable’ fee,” City of Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 2641, 120 L.Ed.2d 449 (1992) (quoting Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986)), and a party asking the court to depart from the lodestar amount bears the burden of proving that the departure is necessary for the calculation of reasonable fees. Grant v. Martinez, 973 F.2d 96, 101 (2d Cir.1992)," }, { "docid": "21415433", "title": "", "text": "hourly rate that would reasonably compensate the attorney for his work. The court then determines the number of hours that were reasonably necessary to litigate the case. Next, the court multiplies these two numbers and arrives at a lodestar figure. There is a “strong presumption that the lodestar figure—the product of reasonable hours times a reasonable rate—represents a ‘reasonable fee.’ ” Pennsylvania v. Delaware Valley Citizens Council, — U.S. —, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (“Pennsylvania I”). The court, however, may adjust the reasonable fee upward in “rare” or “exceptional cases.” Id.; see also Blum v. Stenson, 465 U.S. 886, 898-901, 104 S.Ct. 1541, 1548-50, 79 L.Ed.2d 891 (1984). In certain circumstances it may also be appropriate to adjust a lodestar downward. Hensley, 461 U.S. at 433, 103 S.Ct. at 1939; Calhoun v. Acme Cleveland Corporation, 801 F.2d 558, 560 (1st Cir.1986); Grendel’s Den, 749 F.2d at 951. 1. Reasonable Rate Fee awards must be “ ‘calculated according to the prevailing market rates in the relevant community’, that is ‘those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.’ ” Grendel’s Den, 749 F.2d at 955 (quoting Blum, 465 U.S. at 895 & n. 11, 104 S.Ct. at 1547 & n. 11). In determining a reasonable hourly rate, the court should look at the type of work performed, who did it, the expertise required, and when it was undertaken. Id. The party seeking fees may introduce evidence of the prevailing market rates in the community. The court should also consider the customary rates of the attorney seek ing fees, Wojtkowski v. Cade, 725 F.2d 127, 131 n. 1 (1st Cir.1984), as well as fees awarded in similar cases. Johnson, 488 F.2d at 719. A judge need not, however, accept an attorney’s valuation of his own time. Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 767 (7th Cir.1982) cert. denied, 461 U.S. 956, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). Rather, the court may exercise some discretion in lowering such rates. Id. The court also has the discretion to award different hourly" }, { "docid": "4344989", "title": "", "text": "(Bankr.S.D.N.Y.1997)). “Section 330 of the Bankruptcy Code incorporates the lodestar analysis by requiring that the bankruptcy court consider the time spent upon legal services and the rate charged for those services.” D.A. Elia Constr. Corp. v. Damon and Morey, LLP, 2006 WL 1720361 *5 (W.D.N.Y. Jun.19, 2006). “The customary way to determine a reasonable fee is to begin with the ‘lodestar’ test, and then decide whether to apply any appropriate enhancements under Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-720 (5th Cir.1974).” In re Erik Stephen Brous, 370 B.R. 563, 569 (Bankr.S.D.N.Y.2007) (citing Connolly v. Harris Trust Co. of Cal. (In re MiniScribe), 309 F.3d 1234, 1243 (10th Cir.2002)). See 11 U.S.C. § 330(a)(3). Section 330 also requires the court to take into account other factors, such as the benefit of the services to the bankruptcy estate. See 11 U.S.C. § 330(a)(3). The “lodestar” approach involves multiplying the reasonable billing rate by the reasonable number of hours expended. See Blum v. Stenson, 465 U.S. 886, 898-901, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The “lodestar figure includes most, if not all, of the relevant factors constituting a ‘reasonable’ ... fee ...” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 566, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). Thus, the “lodestar” already reflects the novelty and complexity of the matter, the quality of the representation and the results achieved. See Blum at 899, 104 S.Ct. 1541 (an upward adjustment may be justified “only in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was exceptional).” “Enhancements to the ‘lodestar’ amount are proper only in rare and exceptional cases supported by specific evidence and detailed findings.” Brous, id. (citations omitted). FTI asserts it contributed to the successful restructuring of Debtors where unsecured creditors received a substantial recovery. FTI Fifth and Final Application at ¶ 14. FTI lists eight areas where it contributed to the “success” of Debtors’ reorganization:" }, { "docid": "15278866", "title": "", "text": "(“Grinnell I”), rev’d on other grounds, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979); City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1098 (2d Cir.1977) (“Grinnell II”) (multiply billable hours spent on case by the hourly rate to calculate attorney’s fees); see also, Dague, 505 U.S. at 559, 112 S.Ct. at 2369-40, 120 L.Ed.2d at 454; Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 563, 106 S.Ct. 3088, 3097, 92 L.Ed.2d 439 (1986) (“Delaware I”); Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983) (“product of reasonable hours times a reasonable rate normally provides a reasonable attorney’s fee within the meaning of the statute”). The Second Circuit has warned that attorney’s fees are to be awarded “with an ‘eye to moderation,’ seeking to avoid either the reality or the appearance of awarding “wind falls.’ ” Beazer v. New York City Transit Authority, 558 F.2d 97, 101 (2d Cir.1977); Wheatley v. Ford, 679 F.2d 1037, 1040 (2d Cir.1982); New York State Association for Retarded Children v. Carey, 711 F.2d 1136, 1139 (2d Cir.1983). 1. Calculation of Hourly Rate For the specific hourly rates, the prevailing party is “entitled to reasonable hourly rates which fall within the prevailing marketplace rates in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Cruz v. Local Union No. 3 of the International Brotherhood of Electrical Workers, 34 F.3d 1148, 1159 (2d Cir.1994); Polk v. New York State Department of Correctional Services, 722 F.2d 23, 25 (2d Cir.1983). The burden is on the fee applicant to produce satisfactory evidence, in addition to the attorney’s own affidavits, showing that the requested rates are in line with those prevailing in the community for similar services. Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 1547 n. 11, 79 L.Ed.2d 891 (1984). Additionally, the community to which the district court should look is the judicial district in which the court sits. Cruz, 34 F.3d at 1159. The attorney in this case failed to submit any additional evidence, beyond" }, { "docid": "17093144", "title": "", "text": "“lodestar” or the number of hours reasonably expended on the litigation times a reasonable hourly rate. Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986); Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Acknowledging the presumption of reasonableness that attaches to the lodestar, the district court then proceeded to consider whether an adjustment of the lodestar was nonetheless warranted to arrive at a reasonable fee. See Blum, 465 U.S. at 897, 104 S.Ct. 1541. In so doing, the district court was careful to state its findings in reducing the number of hours claimed, Farbotko Fee Award II, slip. op. at 5-8, as well as to provide a not unreasonable explanation for reducing the award by 40% due to what it considered the “limited success” of the appeal, id. at 11-12. Notably, however, the opinion of the district court did not reflect any findings of fact or other comment on the evidence proffered in support of plaintiffs-appellants’ request for hourly rates of $200 and $250 for work performed before the district court and this Court, respectively. Instead, the district court appears to have relied solely on the rate structures applied in other Northern District eases, and, consistent with those cases, set the hourly rate at $175. Id. at 9. But a reasonable hourly rate is not itself a matter of binding precedent. Rather, under established caselaw, a reasonable hourly rate is the “prevailing market rate,” i.e., the rate “prevailing in the [relevant] community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum, 465 U.S. at 896 & n. 11, 104 S.Ct. 1541; see also Cohen v. W. Haven Bd. of Police Comm’rs, 638 F.2d 496, 506 (2d Cir.1980) (“[F]ees that would be charged for similar work by attorneys of like skill in the area” are the “starting point for determination of a reasonable award.”). The relevant community, in turn, is the district in which the court sits. Polk v. N.Y. State Dep’t of Corr. Servs., 722 F.2d 23, 25 (2d" }, { "docid": "11126278", "title": "", "text": "II. In assessing the reasonableness of a claimed fee in cases like this, we use the “lodestar” formula, which requires multiplying the number of hours reasonably expended by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1938, 76 L.Ed.2d 40 (1983); Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986); Pennsylvania Environ. Def., 152 F.3d at 232. “When the applicant for a fee has carried his burden of showing that the claimed rates and number of hours are reasonable, the resulting product is presumed to be the reasonable fee to which counsel is entitled.” Delaware Valley Citizens’ Council, 478 U.S. at 564, 106 S.Ct. 3088 (internal quotation omitted). In calculating the hours reasonably expended, a court should “review the time charged, decide whether the hours set out were reasonably expended for each of the particular purposes described and then exclude those that are ‘excessive, redundant, or otherwise unnecessary.’” Public Int. Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1188 (3d Cir.1995) (internal citation omitted); see also Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990) (“The district court should exclude hours that are not reasonably expended.”). “Hours that would not generally be billed to one’s own client are not properly billed to an adversary.” Public Interest Group, 51 F.3d at 1188. Thus, we have a positive and affirmative function in the fee fixing process, not merely a passive role. Generally, a reasonable hourly rate is calculated according to the prevailing market rates in the relevant community. See Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Dellarciprete, 892 F.2d at 1183. The court “should assess the experience and skill of the prevailing party’s attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Dellarciprete, 892 F.2d at 1183. The prevailing party “bears the burden of establishing by way of satisfactory evidence, ‘in addition to [the] attorney’s own affidavits,’ ... that the requested hourly rates" }, { "docid": "1498118", "title": "", "text": "1988 is one calculated on the basis of rates and practices prevailing in the relevant market, i.e., “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation,” and one that grants the successful civil rights plaintiff a “fully compensatory fee,” comparable to what is “traditional with attorneys compensated by a fee-paying client.” In this regard, the “most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart (1983) 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40. This “lodestar” amount may then be enhanced by means of a multiplier or reduced based on the circumstances of the particular litigation. See Pennsylvania v. Delaware Valley Citizens’ Council (1987) 483 U.S. 711, 729-31, 107 S.Ct. 3078, 3088-90, 97 L.Ed.2d 585; Blum v. Stenson (1984) 465 U.S. 886, 899, 104 S.Ct. 1541, 1549, 79 L.Ed.2d 891. Here, plaintiff does not request an enhancement. (1) Contemporaneous Time Records Defendant contends that the application does not meet the contemporaneous records requirement of New York Ass’n for Retarded Children v. Carey (2d Cir. 1983) 711 F.2d 1136, and therefore should be denied in its entirety. In Carey, the fee applicant failed to maintain contemporaneous records, and based its application in large part upon retrospective estimations of time expended during the course of the multi-year litigation. Noting that such sparse documentation made review of the application and consideration of objections thereto exceedingly difficult, the Court of Appeals established the requirement (to be imposed prospectively) that fee applicants document their applications with contemporaneous time records specifying “for each attorney, the date, the hours expended, and the nature of the work done.” Id. at 1147-48. In support of the instant application, plaintiff has provided chronological printouts of the computer records generated by Hughes Hubbard’s accounting department from the contemporaneous daily time sheets of each attorney or paralegal for whose services reimbursement is sought. Plaintiff’s counsel has represented that these print-outs set forth verbatim the entries on" }, { "docid": "7459798", "title": "", "text": "expended. See Hensley, 461 U.S. at 437, 103 S.Ct. at 1941; Leroy, 831 F.2d at 586. In step two the court selects “an appropriate hourly rate based on prevailing community standards for attorneys of similar experience in similar cases.” Sims v. Jefferson Downs Racing Ass’n, 778 F.2d 1068, 1084 (5th Cir.1985). The number of compensable hours is then multiplied by the selected hourly rate to produce the “lodestar.” Id. Finally, the district court may, in appropriate cases, adjust the lodestar up or down in accordance with relevant Johnson factors not already included in the lodestar. “[T]he ‘novelty [and] complexity of the issues,’ ‘the special skill and experience of counsel,’ the ‘quality of representation,’ and the ‘results obtained’ from the litigation are presumably fully reflected in the lodestar amount, and thus cannot serve as independent bases for increasing the basic fee award.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (Delaware Valley I); see also Blum v. Stenson, 465 U.S. 886, 898-900, 104 S.Ct. 1541, 1548-50, 79 L.Ed.2d 891 (1984). In adjusting the lodestar the court must be wary of the fact that the lodestar “is presumed to be the reasonable fee,” Delaware Valley I, 478 U.S. at 564, 106 S.Ct. at 3098; Blum, 465 U.S. at 897, 104 S.Ct. at 1548, and that upward adjustments of the lodestar are appropriate only “in certain ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and detailed findings by the lower courts,” Delaware Valley I, 478 U.S. at 565, 106 S.Ct. at 3098. We review findings of fact supporting an award of attorneys’ fees under the clearly erroneous standard, but review the award itself for abuse of discretion. Leroy, 831 F.2d at 584. Defendants challenge: (1) the district court’s acceptance in toto of Oitzinger’s claim for 6,652 hours; (2) the court’s failure to distinguish between Oitzinger’s role as plaintiff’s attorney and his role as the court’s ombudsman, and hence the failure to apply a lower rate to the ombudsman hours; (3) the court’s upward adjustment of the" }, { "docid": "23304029", "title": "", "text": "the fee awarded be reasonable,” that is, one that is adequately compensatory to attract competent counsel yet which avoids producing a windfall for lawyers. Reed, 179 F.3d at 471 (citing Blum v. Stenson, 465 U.S. 886, 893, 897, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). The trial court’s initial point of departure, when calculating a “reasonable” attorney fee, should be the determination of the fee applicant’s “lodestar,” which is the proven number of hours reasonably expended on the case by an attorney, multiplied by his court-ascertained reasonable hourly rate. Hensley, 461 U.S. at 433, 103 S.Ct. 1933; Reed, 179 F.3d at 471. The trial judge may then, within limits, adjust the “lodestar” to reflect relevant considerations peculiar to the subject litigation. Reed, 179 F.3d at 471-72. The factors which the district court may consider, either in determining the basic lodestar fee and/or adjustments thereto, include the twelve listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). Hensley, 461 U.S. at 434 n. 9, 103 S.Ct. 1933. A highly important Johnson factor is the result achieved. Id. at 435-36, 103 S.Ct. 1933. “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee.” Id. at 435, 103 S.Ct. 1933. Generally, a “strong presumption” favors the prevailing lawyer’s entitlement to his lodestar fee. See City of Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (citing Blum, 465 U.S. at 897, 104 S.Ct. 1541). Accordingly, “modifications [to the lodestar] are proper only in certain ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and detailed findings by the lower courts.” Delaware Valley Citizens’ Council, 478 U.S. at 565, 106 S.Ct. 3088 (citing Blum, 465 U.S. at 898-901, 104 S.Ct. 1541). See also Van Gerwen v. Guarantee Mutual Life Co., 214 F.3d 1041, 1045 (9th Cir.2000). A trial court, in calculating the “reasonable hourly rate” component of the lodestar computation, should initially assess the “prevailing market" }, { "docid": "20209103", "title": "", "text": "evidence in the record and detailed findings by the courts.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (\" ‘[N]ovelty [and] complexity of the issues,' ‘the special skill and experience of counsel,’ the 'quality of representation,' and the 'results obtained’ from the litigation are presumably fully reflected in the lodestar amount, and thus cannot serve as independent bases for increasing the basic fee award.’ ”), citing Blum v. Stenson, 465 U.S. 886, 898-900, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The Fifth Circuit has held that the fourth factor, preclusion of other employment, is also generally subsumed in the lodestar. Shipes, 987 F.2d at 322. There is a strong presumption that the lodestar award is reasonable, and a fee applicant bears the burden of producing satisfactory evidence (declarations or opinion evidence of rates actually billed and paid by plaintiff’s counsel, rates charged by lawyers in similar lawsuits, and relative skill of the attorney in the case) that the requested rate is reasonable or that an enhancement is necessary. Blum, 465 U.S. at 896 n. 11, 104 S.Ct. 1541; City of Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). The Court may deny fees for \"excessive, redundant or otherwise unnecessary” hours that lack appropriate documentation. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). A reasonable hourly rate for an attorney is the prevailing market rate in the district where the court sits for attorneys of comparable experience employed in cases of similar complexity. Blum, 465 U.S. at 895-96 & n. 11, 104 S.Ct. 1541. .The firm involved is Hertz Schram, PC, located in Bloomfield Hills, Michigan. .16.0 hours for Cantarella (attorney in charge, partner), 19.30 hours for Schram (founding partner), 39.60 hours for Geller (senior partner), and 4.50 hours for Howes (paralegal). She states that while the firm deemed these hours necessary, they \"generally arose from more than one attorney performing similar or related tasks,” so the Court might fund them duplicative. They also wrote off hours" }, { "docid": "9028850", "title": "", "text": "v. Metro-North R.R. Co. , 658 F.3d 154, 166 (2d Cir. 2011) (lodestar calculation creates \"presumptively reasonable fee\" (internal quotation marks omitted) ) (citing Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany , 522 F.3d 182, 183 (2d Cir. 2008) & Perdue v. Kenny A. ex rel. Winn , 559 U.S. 542, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010) ). There is a strong presumption that the lodestar represents the appropriate award, although courts have the discretion to enhance or reduce the lodestar in rare and exceptional circumstances. ( Id. ) The party seeking fees bears the burden of demonstrating that the fees are reasonable, see Hugee v. Kimso Apartments, LLC , 852 F.Supp.2d 281, 298 (E.D.N.Y. 2012) (citing Hensley v. Eckerhart , 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ), and the party's fee application must be supported by contemporaneous time records that \"[specify], for each attorney, the date, the hours expended, and the nature of the work done,\" Marion S. Mishkin Law Office v. Lopalo , 767 F.3d 144, 148 (2d Cir. 2014) (citing New York State Ass'n for Retarded Children, Inc. v. Carey , 711 F.2d 1136, 1148 (2d Cir. 1983) ). An attorney's hourly rate is considered reasonable when it is \"in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.\" Blum v. Stenson , 465 U.S. 886, 895 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) ; see also Rosado v. City of New York , No. 11cv4285 (SAS), 2012 WL 955510, at *4 (S.D.N.Y. Mar. 15, 2012) (\"The relevant community to which the court should look is the district in which the case is brought.\"). Although the fee applicant has the burden of demonstrating prevailing market rates for comparable work, see Broome v. Biondi , 17 F.Supp.2d 230, 237 (S.D.N.Y. 1997), the Court may also apply its \"own knowledge\" of rates charged in the community in assessing the reasonableness of the rates sought. Miele v. New York State Teamsters Conf. Pension & Ret. Fund , 831 F.2d" }, { "docid": "23482230", "title": "", "text": "v. Lenco Blade, Inc., 704 F.2d 1069, 1073 (9th Cir.1983). DISCUSSION This court has adopted the hybrid lodestar/multiplier approach used by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), as the proper method for determining the amount of attorney’s fees in ERISA actions. See McElwaine, 176 F.3d at 1173; D’Emanuele, 904 F.2d at 1383. The lodestar/multiplier approach has two parts. First, a court determines the “lodestar” amount by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. See D’Emanuele, 904 F.2d at 1383; Hensley, 461 U.S. at 433, 103 S.Ct. 1933. The party seeking an award of fees must submit evidence supporting the hours worked and the rates claimed. See Hensley, 461 U.S. at 433, 103 S.Ct. 1933. A district court should exclude from the lodestar amount hours that are not reasonably expended because they are “excessive, redundant, or otherwise unnecessary.” Id. at 434, 103 S.Ct. 1933. Second, a court may adjust the lodestar upward or downward using a “multiplier” based on factors not subsumed in the initial calculation of the lodestar. See Blum v. Stenson, 465 U.S. 886, 898-901, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (reversing upward multiplier based on factors subsumed in the lodestar determination); Hensley, 461 U.S. at 434 n. 9, 103 S.Ct. 1933 (noting that courts may look at “results obtained” and other factors but should consider that many of these factors are subsumed in the lodestar calculation). The lodestar amount is presumptively the reasonable fee amount, and thus a multiplier may be used to adjust the lodestar amount upward or downward only in “ ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and detailed findings by the lower courts” that the lodestar amount is unreasonably low or unreasonably high. See Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (quoting Blum, 465 U.S. at 898-901, 104 S.Ct. 1541); Blum, 465 U.S. at 897, 104 S.Ct. 1541; D’Emanuele, 904 F.2d at 1384, 1386; Cunningham v." }, { "docid": "20209102", "title": "", "text": "the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19. . To determine a reasonable attorney's fee by the lodestar method, the court must multiply the number of hours reasonably expended on legal services by an appropriate hourly rate in the community for the same kind of work and then decrease or enhance the lodestar based on the Johnson factors unless the calculation of the lodestar has already taken that factor into account. Shipes v. Trinity Industries, 987 F.2d 311, 319-20 (5th Cir.1993). The Supreme Court has since concluded regarding the sixth factor that \"enhancement for contingency is not permitted under the fee-shifting statutes.” City of Burlington v. Dague, 505 U.S. 557, 567, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). It has also restricted use of the second, third, eighth, and ninth factors because “[e]nhancements based upon these factors are only appropriate in rare cases supported by specific evidence in the record and detailed findings by the courts.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (\" ‘[N]ovelty [and] complexity of the issues,' ‘the special skill and experience of counsel,’ the 'quality of representation,' and the 'results obtained’ from the litigation are presumably fully reflected in the lodestar amount, and thus cannot serve as independent bases for increasing the basic fee award.’ ”), citing Blum v. Stenson, 465 U.S. 886, 898-900, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The Fifth Circuit has held that the fourth factor, preclusion of other employment, is also generally subsumed in the lodestar. Shipes, 987 F.2d at 322. There is a strong presumption that the lodestar award is reasonable, and a fee applicant bears the burden of producing satisfactory evidence (declarations or opinion evidence of rates actually billed and paid by plaintiff’s counsel, rates charged by lawyers in similar lawsuits, and relative skill of the attorney in the case) that the requested rate is reasonable or" }, { "docid": "12486896", "title": "", "text": "Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). E.g., Blanchard v. Bergeron, supra, 109 S.Ct. at 943-45. Nevertheless, once the applicant for a fee award has established the reasonableness of the claimed rate and the number of hours expended, the resulting lodestar figure is presumed to be the reasonable fee to which counsel is entitled. Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 3097, 92 L.Ed.2d 439 (1986) (“Delaware Valley I”); Blum v. Stenson, supra, 465 U.S. at 897, 104 S.Ct. at 1548. In this Circuit, an application for attorney’s fees “should normally be disallowed unless accompanied by contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done.” New York State Association for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir.1983). Contemporaneous time records are necessary so that the Court is not faced with an impossible task when asked to determine an appropriate fee amount, and lawyers are not required to expend even more time reconstructing the past in assembling the fee application. Id. at 1147-48. The burden to present such records to the Court rests squarely on the party requesting remuneration. See Hensley v. Eckerhart, supra, 461 U.S. at 437, 103 S.Ct. at 1941; Carrero v. New York City Housing Authority, 685 F.Supp. 904, 909 (S.D.N.Y.1988). a. Reasonableness of hours requested Plaintiffs seek reimbursement for 281.9 hours of work by Alison Wetherfield (“Wetherfield”), a staff attorney at the NOW Legal Defense and Education Fund, 330.5 hours of work by David Cole (“Cole”), an attorney for the Center for Constitutional Rights, and 247.25 hours of work by Mary M. Gundrum (“Gundrum”), a staff attorney at the Center for Constitutional Rights. They have not sought to recover for the work done by certain co- counsel, as, in their billing judgment, this time was duplicative. Nor have they sought fees for substantial time expended by law student interns in assisting in the preparation of this case. Defendants do not contest the amount of time requested for Wetherfield’s efforts," }, { "docid": "12553907", "title": "", "text": "Court must then proceed to calculate the amount of the attorney’s fee award. Such a calculation calls for a determination of a “reasonable” amount that would compensate the attorney. 42 U.S.C.A. § 1988(b) (1994). In determining the reasonableness of a request for attorney’s fees, the court must undertake the task of determining the lodestar amount: namely, the product of the number of hours reasonably expended in an action and the reasonable hourly rate. See Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 989, 944, 103 L.Ed.2d 67 (1989); see also Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 563, 106 S.Ct. 3088, 3097, 92 L.Ed.2d 439 (1986); Hensley, 461 U.S. at 433, 103 S.Ct. at 1939 (1983); Cruz v. Local Union No. 3 of Int’l Bhd., 34 F.3d 1148, 1159 (2d Cir.1994). Upon a showing by the applicant that both the claimed hourly rate and number of hours are reasonable, the lodestar amount is presumed to be the reasonable fee to which an attorney is entitled. Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984); New York State NOW v. Terry, 737 F.Supp. 1350, 1359 (S.D.N.Y. 1990). This lodestar amount must then be examined to determine the necessity of either downward or upward adjustments. However, in most circumstances, any relevant factors will bear on reasonableness and would thus be included in the calculation of the lodestar amount. In such a situation, no adjustment will be required. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. at 566, 106 S.Ct. at 3099. The court declines to make an upward adjustment as requested by the plaintiffs attorney in this case. Furthermore, the court possesses the freedom to “apply its own knowledge of prevailing rates and rates awarded in similar cases.” O’Connor v. Liberty Mut. Ins. Co., No. 92 Civ. 2296, 1995 WL 49278, at *4 (S.D.N.Y. Feb. 8, 1995). Upon a review of all of the above-listed factors with regard to this case, the court finds the plaintiff to be awarded $150.00 per hour for partner’s efforts, as well as a" }, { "docid": "6208776", "title": "", "text": "Id. at 12. The Portland attorney in Nemo has considerable more litigation experience than Plaintiffs counsel, Mr. Crispin, and was awarded by the Court a lower fee than Mr. Crispin requests. Moreover, Plaintiff failed to provide rates of Portland lawyers of comparable skill, experience, and reputation with Mr. Crispin. Instead, she included an affidavit from Stephen Brischetto who charges $200/hour for representing plaintiffs in em-fe ployment law cases, but who has litigated'\"' many significant employment law cases to judgment. In contrast, Mr. Crispin’s affidavit is devoid of any employment law case that he has litigated to judgment. Therefore, Plaintiff failed to include evidence of reasonable rates in the community of similarly experienced employment law attorneys. Mr. Osaka notes that he is more experienced than Mr. Crispin and charges only $145/hour. I find that this is a “reasonable rate” based on the average rates for civil litigation attorneys in Portland, especially considering Mr. Crispin’s moderate litigation experience in the field. Accordingly, Mr. Crispin’s rate is $145/hour and Ms. Jacob’s is $115/hour. The rates of the other individuals who worked on Plaintiffs case are reasonable. c. Lodestar Fee Multiplying the hours that were reasonably expended by the reasonable rates, 1 conclude that the lodestar fee is $43,505.07. This sum includes all hours reasonably expended which includes all current and future fees incurred in preparing and litigating Plaintiffs Petition for Attorney Fees and Costs. There will be no supplemental award of attorney fees in this ease. Therefore, the total lodestar fee is $43,505.07. Plaintiff requests that the lodestar amount be adjusted upward. However, the lodestar fee is presumed reasonable and will be upwardly adjusted only “in certain ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and detailed findings by the lower courts.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (quoting Blum v. Stenson, 465 U.S. 886, 898-901, 104 S.Ct. 1541, 1548-50, 79 L.Ed.2d 891 (1984), rev’d after rehearing on other grounds, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987)); see also Cunningham, 879" } ]

[ { "docid": "10978468", "title": "", "text": "for debts resulting from the debtor’s intentional torts, such as conversion, where the “wrongful act ... necessarily produces harm and is without just cause or excuse.” Id. at ¶ 523.16[1]. So why would a creditor who thinks the debtor has defrauded him bother to base his claim on constructive trust? The answer is simple: it is harder to prevail by arguing that a debt is nondischargeable. For example, to prove an exception under § 528(a)(2)(A), the creditor must prove that the debtor obtained money through a material misrepresentation that at the time the debtor knew was false or made with gross recklessness as to its truth. The creditor must also prove the debtor’s intent to deceive. Moreover, the creditor must prove that it reasonably relied on the false representation and that its reliance was the proximate cause of loss. In re Phillips, 804 F.2d 930, 932 (6th Cir.1986). Although the creditor need only prove his reliance by a preponderance of the evidence, Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991), the bankruptcy court must construe all exceptions to discharge “strictly,” with the benefit of any doubt going to the debtor. In re Ward, 857 F.2d 1082, 1083 (6th Cir.1988). A second, and certainly more compelling reason to avoid pursuing a claim under § 523, is that the creditor who prevails in proving his debt to be nondischargeable comes away from the bankruptcy proceeding with only his debt intact; he has no more assurance than he did prepetition that the debtor, having reorganized or otherwise received its “fresh start,” will ever pay him back. On the other hand, if the creditor successfully argues that he “owns” the money or property owed him since the debtor’s fraud gave rise to a constructive trust, the creditor walks away with his debt fully satisfied, leaving the rest of the creditors to squabble over the remnants. C. The equities of bankruptcy are not the equities of the common law. Constructive trusts are anathema to the equities of bankruptcy since they take from the estate, and thus directly from competing creditors," } ]

[ { "docid": "13636909", "title": "", "text": "involved in their household finances. The court finds the Debtor’s conduct with regards to the false 1998 tax return and, more significantly, the Sales Tax Affidavit, rose to the level of gross recklessness, satisfying the second prong of § 523(a)(2)(B)(iv). It is completely unacceptable that the Debtor believes that she can blindly sign documents upon which any reasonable person would realize are being relied upon, without any thought, care, or consideration for the contents contained therein. Additionally, when examined in totality with the other evidence, submitted, the Debtor’s testimony that she did not know that she was obligated to FTB on the SBA Loan is not credible, nor is her testimony that she was completely unaware of the family’s financial status at the time of the Closing. Given the numerous inconsistencies within the Debtor’s testimony both at her deposition and at trial, and documents introduced into evidence indicating that the Debtor was, in fact, a co-owner of HCC, combined with the actual falsities contained within the false 1998 tax return and the Sales Tax Affidavit, the court finds that the Debtor’s gross recklessness evidences an intent to deceive, as interpreted by § 523(a)(2)(B). F The Plaintiffs have satisfied their burden of proof as to all of the elements necessary for nondischargeability under § 523(a)(2)(B). Accordingly, any damages or judgment assessed against the Debtor in favor of the Plaintiffs pursuant to the sale of HCC’s assets shall be nondis-chargeable. VII The final issue before the court concerns damages. The first question is whether the court must give collateral estoppel effect, pursuant to the Full Faith and Credit Statute, to the Knox County Chancery Court Judgment obtained by the Plaintiffs . against Mr. Copeland, thereby limiting the nondischargeable damages to be assessed against the Debtor to $99,053.00. If the court determines that it is not required to ’ give collateral estoppel effect to the Knox , County Chancery Court Judgment, then the court must determine and impose the correct amount of damages incurred by . the Plaintiffs based upon the Debtor’s wrongdoing. A The Full Faith and Credit Statute . provides that" }, { "docid": "13636900", "title": "", "text": "attendance at the Closing, the Plaintiffs dealt exclusively with Mr. Copeland during the negotiations for the sale of HCC’s assets. Mr. Copeland was the person from whom the Plaintiffs both requested and received additional documentation regarding HCC’s financial status. On the other hand, the Debtor signed both the false tax return and the Sales Tax Affidavit. By doing so, she asserted by her actions that the representations contained therein were accurate. These documents were put into circulation and made known to the Plaintiffs prior to and at the Closing. Admittedly, the Debtor did not read these documents prior to signing them. In fact, when asked about her signature on the false tax return, the Debtor stated that she has never read a tax return before signing it, that if Mr. Copeland tells her to sign a document, she signs it, and that she is not obligated to anyone else as to the contents of any documents that she signs. Similarly, when questioned at trial about signing the false Sales Tax Affidavit, the Debtor testified that she did not read the Sales Tax Affidavit prior to executing it, did not pay attention to what it said, that her mind “never addressed a care.” Instead, the Debtor stated that she simply signed all of the Closing Documents, including the Sales Tax Affidavit, based upon Mr. Copeland’s request. Nevertheless, both the false 1998 tax return and the Sales Tax Affidavit contained material information upon which the Plaintiffs relied to their detriment. The court determines that the Debtor, personally, caused the false tax return for 1998 and the Sales Tax Affidavit to be published, satisfying the first prong of § 523(a)(2)(B)(iv). As to the second prong of § 528(a)(2)(B)(iv), the court reiterates that the Plaintiffs have not established that the Debtor actually intended to deceive them by signing and releasing the tax return and the Sales Tax Affidavit. However,' under § 523(a)(2)(B), “[ajctual knowledge of falsity and conscious intent to deceive are not necessary, intent may be inferred where the debtor made no effort to verify facts stated and had no reasonable grounds to" }, { "docid": "13636838", "title": "", "text": "is more than mere negligence.... A ‘dumb but honest’ [debtor] does not satisfy the test.” Palmacci, 121 F.3d at 788 (citations omitted). A debtor’s fraudulent intent may be inferred from the totality of the circumstances. The bankruptcy court must consider whether the totality of the circumstances “presents a picture of deceptive conduct by the debtor which indicates an intent to deceive the creditor.” The court may consider not only the debtor’s conduct at the time of the representations, but may consider subsequent conduct, to the extent that it provides an indication of the debtor’s state of mind at the time of the actionable representations. Wolf v. McGuire (In re McGuire), 284 B.R. 481, 492 (Bankr.D.Colo.2002) (quoting Groetken v. Davis (In re Davis), 246 B.R. 646, 652 (10th Cir. BAP 2000) (citations omitted)). “A creditor can present proof of surrounding circumstances from which a[c]ourt can infer a dishonest intent.” McCoy, 269 B.R. at 199. Proving the Debtor’s intent to defraud is similar to proving the Debtor’s knowledge and/or recklessness as to the falsity of the representations made. Because intent is a purely subjective question, the court must examine the totality of the Debtor’s actiqns to determine if she possessed the requisite intent to deceive the Plaintiffs. Any benefit of the doubt must be resolved in favor of the Debtor, as § 523(a)(2) is strictly construed in her favor. XL/Datacomp, Inc. v. Wilson (In re Omegas Group, Inc.), 16 F.3d 1443, 1452 (6th Cir.1994). As previously concluded, the Debtor acted with reckless indifference when she executed the Closing Documents without reading them. Again, the court recalls the Debtor’s assertions that she does not owe an obligation to anyone else regarding the contents of documents that she has executed. Additionally, the Debt- or’s inconsistent testimony regarding what she knew about the family’s financial status at the time HCC’s assets were sold to the Plaintiffs displays some element of concealment of the truth. Further, the court does not believe that the Debtor is as unsophisticated or oblivious regarding HCC, its finances, or her own household finances as she attempted to convey at trial. The" }, { "docid": "13636902", "title": "", "text": "believe that the facts were correct.” Warner, 169 B.R. at 162. The court must focus on “whether the surrounding circumstances or the debtor’s actions ‘appear so inconsistent with [her] self-serving statement [that she lacked intent] that the proof leads the court to disbelieve the debtor.’ ” Palmacci, 121 F.3d at 789 (quoting Heinold Commodities & Sec., Inc. v. Hunt (In re Hunt), 30 B.R. 425, 441 (M.D.Tenn.1983)). In addition to her own actions constituting intent to deceive, the Plaintiffs contend that the Debtor was aware that representations made by Mr. Copeland during the Closing concerning HCC’s worth were false, and yet, she remained silent, allowing the Closing to proceed. In her defense, the Debtor claimed to be ignorant, denying that she knew anything about HCC’s finances, testifying at trial that she had nothing whatsoever to do ■ with either her family’s personal finances or HCC’s finances. However, as previously discussed, the Debtor has given inconsistent testimony regarding what she knew as to both her household finances and those of HCC. Additionally, the Plaintiffs testified that the parties discussed the Sales Tax Affidavit, in particular, prior to the Copelands executing it at the Closing. Whether it was actually discussed in front of the Debtor or not, she admitted to signing the Sales Tax Affidavit without reading it and without regard for its content. However, the fact that the Debtor did not review the Sales Tax Affidavit prior to executing and submitting it to the Plaintiffs “does not aid [her cause], instead it illustrates [her] indifference to [the Plaintiffs’] reliance on [her] representations.” Walter E. Heller & Co. v. Byrd (In re Byrd), 41 B.R. 555, 564 (Bankr.E.D.Tenn.1984). As stated by the Fourth Circuit, [a] wife who allows her husband to do business in her name and signs without question any sort of paper that he presents to her is not entitled to a discharge in bankruptcy merely because she has relied upon him where she has signed a statement as to her financial condition with “reckless indifference to the actual facts, without examining the available source of knowledge which lay at" }, { "docid": "13636817", "title": "", "text": "the majority of their negotiations for the purchase of HCC’s assets took place with Mr. Copeland, they were initially contacted by the Debtor, who was also present at the Closing on August 2, 1999, and who executed the Closing Documents “d/b/a” HCC. Next, the Plaintiffs argue that because the Debtor held herself out to be a co-owner of HCC not only to them, but also to the general public, the Debtor and Mr. Copeland were general partners in HCC under Tennessee law, whereby the Debtor would also be liable for Mr. Copeland’s fraudulent misrepresentations in this dischargeability action. Finally, the Plaintiffs insist that even if the Debtor was not a general partner or co-owner of HCC, she was present at the Closing, she was aware of Mr. Copeland’s fraudulent misrepresentations, and she acted with gross reckless disregard when she failed to alert the Plaintiffs, knowing that they were relying upon the statements and documents to their detriment. The Debtor testified that she was never a co-owner of HCC; instead, arguing that Mr. Copeland was the sole owner, regardless of the fact that she would sometimes assist him at HCC during the store’s busiest times. The Debtor insists that she was unaware of Mr. Copeland’s misrepresentations regarding the financial status of HCC in that he alone controlled the financial aspects of HCC, in addition to having sole control over their personal household finances. The Debtor testified that she was present at the Closing only because Mr. Copeland commanded her attendance, and that she executed the Closing Documents only because Mr. Copeland told her that she had to because she had originally executed a franchise agreement to use recipes owned by HCC. The Debtor testified that she did not read the Closing Documents prior to executing them, and that once she signed them, she promptly left. The Debtor argues that even though she might have been negligent in failing to read the documents that she signed, she never had any intention of deceiving or defrauding the Plaintiffs. Furthermore, the Debtor maintains that she was unaware of Mr. Copeland’s fraudulent misrepresentations to the" }, { "docid": "13636901", "title": "", "text": "she did not read the Sales Tax Affidavit prior to executing it, did not pay attention to what it said, that her mind “never addressed a care.” Instead, the Debtor stated that she simply signed all of the Closing Documents, including the Sales Tax Affidavit, based upon Mr. Copeland’s request. Nevertheless, both the false 1998 tax return and the Sales Tax Affidavit contained material information upon which the Plaintiffs relied to their detriment. The court determines that the Debtor, personally, caused the false tax return for 1998 and the Sales Tax Affidavit to be published, satisfying the first prong of § 523(a)(2)(B)(iv). As to the second prong of § 528(a)(2)(B)(iv), the court reiterates that the Plaintiffs have not established that the Debtor actually intended to deceive them by signing and releasing the tax return and the Sales Tax Affidavit. However,' under § 523(a)(2)(B), “[ajctual knowledge of falsity and conscious intent to deceive are not necessary, intent may be inferred where the debtor made no effort to verify facts stated and had no reasonable grounds to believe that the facts were correct.” Warner, 169 B.R. at 162. The court must focus on “whether the surrounding circumstances or the debtor’s actions ‘appear so inconsistent with [her] self-serving statement [that she lacked intent] that the proof leads the court to disbelieve the debtor.’ ” Palmacci, 121 F.3d at 789 (quoting Heinold Commodities & Sec., Inc. v. Hunt (In re Hunt), 30 B.R. 425, 441 (M.D.Tenn.1983)). In addition to her own actions constituting intent to deceive, the Plaintiffs contend that the Debtor was aware that representations made by Mr. Copeland during the Closing concerning HCC’s worth were false, and yet, she remained silent, allowing the Closing to proceed. In her defense, the Debtor claimed to be ignorant, denying that she knew anything about HCC’s finances, testifying at trial that she had nothing whatsoever to do ■ with either her family’s personal finances or HCC’s finances. However, as previously discussed, the Debtor has given inconsistent testimony regarding what she knew as to both her household finances and those of HCC. Additionally, the Plaintiffs testified that" }, { "docid": "13636930", "title": "", "text": "page 28, line 19. . Conversely, the Plaintiffs testified, without rebuttal, that Mr. Copeland did make several false oral statements regarding HCC and what it was worth. Specifically, Mr. Copeland indicated to the Plaintiffs that the profits in 1998 were approximately $91,000.00, when in fact, it was later discovered that the profits were closer to $50,000.00. See Trial Ex. 4; Trial Ex. 5. In addition to these representations, Mr. Copeland provided the Plaintiffs with a General Prospectus, which included many documents reflecting the financial status of HCC such as profiiyloss statements, a balance sheet, and monthly sales figures. See Collective Trial Ex. 146. Mr. Copeland also gave copies of documents relating to a prior offer to purchase HCC's assets by Dr. Francis Roy to the Plaintiffs, consisting mainly of financial statements and tax documents. See Collective Trial Ex. 147, discussed in section VI, part A, infra. Although the Plaintiffs later learned that many of Mr. Copeland's representations were false, by virtue of the plain language of § 523(a)(2)(A), these statements cannot form the basis of the Plaintiffs’ claim of nondischargeability. See Armbrustmacher v. Redburn (In re Redburn), 202 B.R. 917, 924 (Bankr.W.D.Mich.1996) (\"An oral misrepresentation of financial condition is not actionable.\"). . There is inconsistent testimony as to how long the Debtor was actually in attendance at the Closing. The Debtor testified that she was only there for approximately one-half hour, just long enough to execute the Closing Documents and leave. The Plaintiffs testified that the Debtor was present at the Closing for almost the entire two hours, and that she might have left and returned, but that she was in attendance longer than half an hour. . In addition, the Debtor testified that she home-schools her oldest child not only in the regular fifth grade curriculum and economics, but also in chemistry and Hebrew, as well as two musical instruments. The Debtor also displayed an extensive knowledge of grammar at her deposition when questioned about whether Mr. Copeland was \"representing” her, and she answered \"The only thing he would have represented, since I don’t have a dictionary and a" }, { "docid": "13636897", "title": "", "text": "the sham documents provided in connection with their purchase of HCC’s assets was reasonable, satisfying § 523(a)(2)(B)(iii). E Subsection (B)(iv) has two integral parts, first, that the debtor created the false statements, had the statements created, or allowed the statements to be “pub- . lished,” and second, that the debtor intended to deceive by producing the statements. “Publish” is defined as “[t]o make public; to circulate; to make known to people in general. To issue; to put into circulation .... To declare or assert, directly or indirectly, by words or actions, that a forged instrument is genuine.” Black’s Law DiCtionaey 1233 (6th ed.1994). The debtor may supply the creditor with the statements directly, or the creditor may ‘obtain them indirectly from another source. 4 Collier on Bankruptcy • ¶ 523.08[l][e][i] (Lawrence P. King ed., 15th ed. rev.2002). As with § 523(a)(2)(A), intent to deceive is a subjective measure that can be proved by a debtor’s actions. See Rembert, 141 F.3d at 281; McCoy, 269 B.R. at 199. In the Sixth Circuit, “[§ ] 523(a)(2)(B)(iv) is met if a debtor is reckless when submitting financial statements that he knows are not true, not only if the debtor possesses a subjective intent to deceive.” Investors Credit Corp. v. Batie (In re Batie), 995 F.2d 85, 90 (6th Cir.1993); see also Posillico v. Bratcher (In re Bratcher), 281 B.R. 753, 761 (Bankr. M.D.Fla.2002) (“The knowledge element is satisfied if a debtor’s representation was known to be false or was recklessly made without knowing whether it was true or false.”). Ergo, “gross recklessness is sufficient to establish an intent to deceive.” Bank One, Lexington, N.A. v. Woolum (In re Woolum), 979 F.2d 71, 73 (6th Cir.1992). “Reckless disregard for the truth or falsity of a statement combined with the sheer magnitude of the resultant misrepresentation may combine to produce the inference of intent [to deceive].” Norris v. First Nat’l Bank (In re Norris), 70 F.3d 27, 30 n. 12 (5th Cir.1995) (quoting Equitable Bank v. Miller (In re Miller), 39 F.3d 301, 305 (11th Cir.1994) (citations omitted)). With regards to the first prong of" }, { "docid": "1935870", "title": "", "text": "of the debtor’s financial statement having been published. Danns v. Household Finance Corp., 558 F.2d 114, 116 (2d Cir.1977); In re Blatz, 37 B.R. 401, 405-06 (Bankr.E.D.Wis.1984). Material falsity has been defined as “an important or substantial untruth.” Matter of Bogstad, 779 F.2d 370, 357 (7th Cir.1985). The omission, concealment or understatement of any of the debtor’s material liabilities constitutes a “materially false” statement. In re Howard, 73 B.R. 694, 703 (Bankr.N.D.Ind.1987); In re Anzman, 73 B.R. 156,163 (Bankr.D.Colo.1986); but see In re Jones, 49 B.R. 431, 436 (Bankr.D.C.1985) (an omission does not constitute a “representation” for purposes of § 523(a)(2)(B)). Actual knowledge of the falsity of financial information is not required; a creditor can establish intent to deceive by proving reckless indifference to or reckless disregard of the accuracy of the information in the financial statement of the debtor. Howard, supra, at 703; Matter of Garman, 643 F.2d 1252 (7th Cir.1980). Under § 523(a)(2)(B), intent to deceive may be presumed by use of a false statement. Intent can be rebutted if the debtor denies alleged intent, and then the creditor has the burden of going forward with its proof. The creditor ultimately bears the burden of proof and risk of non-persuasion. If the creditor presents evidence of acts and surrounding circumstances from which intent to deceive could be inferred, the debtor cannot overcome such inference with merely an unsupported assertion of honest intent. In re Simpson, 29 B.R. 202 (Bankr.Ia.1983). At trial, North Shore submitted the signed security agreement and loan application filled out by Mr. Jones for the renewal of his loan. Both he and Mrs. Jones signed these two documents. Mrs. Jones claims not to have read either, and North Shore presented no evidence of surrounding circumstances from which any intent on her part to deceive North Shore could be inferred. According to her deposition, which was admitted into evidence at trial, her husband presented her with these papers to be signed, and she merely complied with his request. The original loan was in her husband’s name only. North Shore has not claimed that the loan would" }, { "docid": "13636899", "title": "", "text": "§ 523(a)(2)(B)(iv), the language of the statute unambiguously states that the debtor must cause the false financial documents to be made or published. See § 523(a)(2)(B)(iv). In other words, as it relates to this case, to satisfy this prong, the Plaintiffs must prove that the documents upon which they reasonably relied, i.e., the General Prospectus, the Roy Offer Documents, the false Department of Revenue fax, the false tax return for 1998, the false March 1999 deposit record, and the Sales Tax Affidavit, were either produced by the Debtor, produced for the Debtor, or requested by the Debtor. The proof establishes that it was Mr. Copeland, and not the Debtor, who either produced the documents, had them produced, or allowed the production of the General Prospectus, the Roy Offer Documents, the false Department of Revenue fax, and the false March 1999 deposit record. In fact, the Plaintiffs have presented no evidence that the Debtor, herself, had any role whatsoever in the production of these documents. With the exception of a couple of telephone calls and her attendance at the Closing, the Plaintiffs dealt exclusively with Mr. Copeland during the negotiations for the sale of HCC’s assets. Mr. Copeland was the person from whom the Plaintiffs both requested and received additional documentation regarding HCC’s financial status. On the other hand, the Debtor signed both the false tax return and the Sales Tax Affidavit. By doing so, she asserted by her actions that the representations contained therein were accurate. These documents were put into circulation and made known to the Plaintiffs prior to and at the Closing. Admittedly, the Debtor did not read these documents prior to signing them. In fact, when asked about her signature on the false tax return, the Debtor stated that she has never read a tax return before signing it, that if Mr. Copeland tells her to sign a document, she signs it, and that she is not obligated to anyone else as to the contents of any documents that she signs. Similarly, when questioned at trial about signing the false Sales Tax Affidavit, the Debtor testified that" }, { "docid": "13636818", "title": "", "text": "sole owner, regardless of the fact that she would sometimes assist him at HCC during the store’s busiest times. The Debtor insists that she was unaware of Mr. Copeland’s misrepresentations regarding the financial status of HCC in that he alone controlled the financial aspects of HCC, in addition to having sole control over their personal household finances. The Debtor testified that she was present at the Closing only because Mr. Copeland commanded her attendance, and that she executed the Closing Documents only because Mr. Copeland told her that she had to because she had originally executed a franchise agreement to use recipes owned by HCC. The Debtor testified that she did not read the Closing Documents prior to executing them, and that once she signed them, she promptly left. The Debtor argues that even though she might have been negligent in failing to read the documents that she signed, she never had any intention of deceiving or defrauding the Plaintiffs. Furthermore, the Debtor maintains that she was unaware of Mr. Copeland’s fraudulent misrepresentations to the Plaintiffs, and as such, his liability should not be imputed to her. Ill The nondischargeability of debts is governed by 11 U.S.C.A. § 523, which provides in material part; (a) A discharge under section 727, ... of this title does not discharge an individual debtor from any debt— (2) for money, property, services or an extension, renewal, or refinancing of credit, to the extent obtained, by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition; (B) use of a statement in writing— (i) that is materially false; (ii) respecting the debtor’s or an insider’s financial condition; (iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive[.] 11 U.S.C.A. § 523 (West 1993 & Supp. 2002). The party seeking a determination of nondischargeability under any subsection of § 523(a) has the burden of proof by a preponderance of the" }, { "docid": "13636840", "title": "", "text": "court is not convinced that Mrs. Copeland is a “dumb but honest debtor.” See Palmacci, 121 F.3d at 788. On the other hand, fraudulent intent requires proof of an intent on her part to mislead the Plaintiffs, which has not been shown. Throughout her testimony, the Debtor insisted that she was unaware that any fraud was occurring and that she had no fraudulent intent towards the Plaintiffs. Additionally, the Plaintiffs introduced no evidence to indicate otherwise. The gist of the Plaintiffs’ argument against the Debtor is that she should have alerted them to misrepresentations in the Closing Documents at the Closing. But, given the undisputed proof that the Debtor did not read any of the Closing Documents prior to signing them, even though she should have known the contents of the statements contained therein, clearly, she did not. Although the court believes that the Debtor’s actions and/or inactions rise above mere negligence to a level of gross recklessness, the court cannot conclude that the Debt- or’s conduct rose to the level of actual fraud or deceit as required by § 523(a)(2)(A). Accordingly, this element has not been satisfied. C The inquiry into whether a creditor’s reliance is justifiable, the third Rembert element, is also subjective, based on the facts and circumstances surrounding each individual case. McCoy, 269 B.R. at 198. A logical prerequisite for justifiable reliance is a showing by the creditor that it “actually relied” and that its reliance was then justifiable. See Pauley, 205 B.R. at 506-07 (citing AT & T Universal Card Servs. v. Alvi (In re Alvi), 191 B.R. 724, 730-81 (Bankr.N.D.Ill.1996)). “Under this standard, a creditor will be found to have justifiably relied on a representation even though ‘he might have ascertained the falsity of the representation had he made an investigation.’ ” McCoy, 269 B.R. at 198 (quoting Mans, 116 S.Ct. at 444). Hence, the determinative issues are whether the Plaintiffs actually relied upon the misrepresentations and, if so, whether their reliance was justified, based upon the facts and circumstances existing at that time. First, as to actual reliance, the Plaintiffs testified that they" }, { "docid": "16371951", "title": "", "text": "from evidence which reveals a reckless disregard for the truth or falsity of the statement made. See, e.g., In re Martin, 761 F.2d 1163, 1167 (6th Cir.1985). Once the Plaintiff presents evidence from which an intent to deceive may be inferred, the burden of proof shifts to the Debtor/Defendant who then may offer testimony to vitiate that inference. Matter of Hutchinson, 27 B.R. 247, 252 (Bankr.E.D.N.Y.1983). The Plaintiff asserts that the circumstances present in this case indicate that the Debtor knew she would not receive financing without publishing a false statement regarding her financial condition and income. In addition, Plaintiff contends that an intent to deceive can be inferred from the material misrepresentations contained in the financing statement submitted to Plaintiff through Plaza Motor Company. In response, the Debtor presented the testimony of Dr. Buntee Co, Jr., M.D., in support of her contention that her diminished mental capacity precluded her from forming the requisite intent to deceive her credi tors. The Court finds the uncontroverted testimony of Dr. Co to be entirely credible. The Plaintiff offers no evidence tending to refute Debtor/Defendant’s affirmative defense of diminished mental capacity. Accordingly, the Court finds that the Plaintiff has failed to establish that the Debtor submitted the financing statement with the intent to deceive. Therefore, the Plaintiff’s petition to determine the dischargeability of the debt owed it by Debtor/Defendant must be DENIED. The Plaintiff offers an alternative theory of relief under Missouri law. Plaintiff correctly notes that a contract entered into by one with diminished mental capacity is subject to rescission under Missouri law. As a consequence, Plaintiff contends that it is entitled to be returned to the position it enjoyed prior to the agreement with the Debtor/Defendant. While its claim for a return to the status quo is well grounded in state law, the Plaintiff holds only an unsecured claim subject to discharge in this Chapter 7 proceeding. 11 U.S.C. § 727(b). The Debtor/Defendant requests that it be awarded attorney’s fees in the amount of $500.00. Where a creditor has requested a determination of dischargeability of a consumer debt under § 523(a)(2)" }, { "docid": "13636831", "title": "", "text": "element requires a showing that the debtor either knowingly made false representations or acted with reckless disregard for the truth in making representations without confirming their accuracy. “Knowing” means “[hjaving or showing awareness or understanding” and includes conscious or deliberate acts. BlaCK’s Law Dictionary 876 (7th ed.1999). As applied to § 523(a)(2)(A), “the concept of misrepresentation includes a false representation as to one’s intention, such as a promise to act. ‘A representation of the maker’s own intention to do ... a particular thing is fraudulent if he does not have that intention’ at the time he makes the representation.” Palmacci, 121 F.3d at 786 (quoting Restatement (Second) of Torts § 580(1)). “Reckless disregard” is defined as “[c]on-scious indifference to the consequences (of an act).” Black’s Law Dictionary 1276 (7th ed.1999). Similarly, “[Recklessness involves a greater degree of fault than negligence but a lesser degree of fault than intentional wrongdoing.” Black’s Law Dictionary 1277 (7th ed.1999). However, “reckless disregard” should be very narrowly interpreted.... A “line is to be drawn between an intent to mislead and mere negligence. An honest belief, however unreasonable, that the representation is true and the speaker has information to justify it [has been] held ... to be no sufficient basis for deceit.” Nat’l City Bank v. Manning (In re Manning), 280 B.R. 171, 191 (Bankr.S.D.Ohio 2002) (quoting Chevy Chase Bank FSB v. Kukuk (In re Kukuk), 225 B.R. 778, 787 (10th Cir. BAP 1998)). Accordingly, the Plaintiffs must prove that the Debtor either knew that the representations made to them were false or that she acted with such reckless disregard for the truth of the representations that she should be culpable. The Debtor testified that she attended the Closing only because Mr. Copeland asked her to, that she signed the Closing Documents only because she thought she was transferring her rights to the recipes, and that she did not read the Closing Documents before signing them because she was concerned with returning to her month-old baby and because she trusted what Mr. Copeland told her. However, had the Debtor read the Closing Documents prior to signing" }, { "docid": "16371950", "title": "", "text": "or an individual’s financial condition; (iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive; _ 11 U.S.C. § 523. A creditor must prove all of the elements set out above in order to prevail. In re Bundy, 95 B.R. 1004, 1008 (Bankr.W.D.Mo.1989). It is clear that the Debtor obtained financing for the automobile through the publication of a materially false financing statement. While the facts surrounding the reasonableness of First Bank’s reliance on the information contained in the financing statement are less clear, the Court assumes without deciding that such reliance was indeed reasonable. The final element of § 523(a)(2)(B) is determinative. In order to prove that the Debtor acted with the requisite intent, the Plaintiff must offer evidence that the Debt- or knew or should have known of the falsity of the statement when made. In re Perez, 94 B.R. 765, 768 (Bankr.M.D.Fla.1988). Intent also may be inferred from evidence which reveals a reckless disregard for the truth or falsity of the statement made. See, e.g., In re Martin, 761 F.2d 1163, 1167 (6th Cir.1985). Once the Plaintiff presents evidence from which an intent to deceive may be inferred, the burden of proof shifts to the Debtor/Defendant who then may offer testimony to vitiate that inference. Matter of Hutchinson, 27 B.R. 247, 252 (Bankr.E.D.N.Y.1983). The Plaintiff asserts that the circumstances present in this case indicate that the Debtor knew she would not receive financing without publishing a false statement regarding her financial condition and income. In addition, Plaintiff contends that an intent to deceive can be inferred from the material misrepresentations contained in the financing statement submitted to Plaintiff through Plaza Motor Company. In response, the Debtor presented the testimony of Dr. Buntee Co, Jr., M.D., in support of her contention that her diminished mental capacity precluded her from forming the requisite intent to deceive her credi tors. The Court finds the uncontroverted testimony of Dr. Co to be entirely credible. The Plaintiff" }, { "docid": "13636839", "title": "", "text": "made. Because intent is a purely subjective question, the court must examine the totality of the Debtor’s actiqns to determine if she possessed the requisite intent to deceive the Plaintiffs. Any benefit of the doubt must be resolved in favor of the Debtor, as § 523(a)(2) is strictly construed in her favor. XL/Datacomp, Inc. v. Wilson (In re Omegas Group, Inc.), 16 F.3d 1443, 1452 (6th Cir.1994). As previously concluded, the Debtor acted with reckless indifference when she executed the Closing Documents without reading them. Again, the court recalls the Debtor’s assertions that she does not owe an obligation to anyone else regarding the contents of documents that she has executed. Additionally, the Debt- or’s inconsistent testimony regarding what she knew about the family’s financial status at the time HCC’s assets were sold to the Plaintiffs displays some element of concealment of the truth. Further, the court does not believe that the Debtor is as unsophisticated or oblivious regarding HCC, its finances, or her own household finances as she attempted to convey at trial. The court is not convinced that Mrs. Copeland is a “dumb but honest debtor.” See Palmacci, 121 F.3d at 788. On the other hand, fraudulent intent requires proof of an intent on her part to mislead the Plaintiffs, which has not been shown. Throughout her testimony, the Debtor insisted that she was unaware that any fraud was occurring and that she had no fraudulent intent towards the Plaintiffs. Additionally, the Plaintiffs introduced no evidence to indicate otherwise. The gist of the Plaintiffs’ argument against the Debtor is that she should have alerted them to misrepresentations in the Closing Documents at the Closing. But, given the undisputed proof that the Debtor did not read any of the Closing Documents prior to signing them, even though she should have known the contents of the statements contained therein, clearly, she did not. Although the court believes that the Debtor’s actions and/or inactions rise above mere negligence to a level of gross recklessness, the court cannot conclude that the Debt- or’s conduct rose to the level of actual fraud or" }, { "docid": "19126419", "title": "", "text": "and pretenses encompass statements that falsely purport to depict current or past facts.’ ”). On the other hand, a broken promise to repay a debt, without more, will not sustain a cause of action under § 523(a)(2)(A). Instead, central to the concept of fraud is the existence of scienter which, for the purposes of § 523(a)(2)(A), requires that it be shown that at the time the debt was incurred, there existed no intent on the part of the debtor to repay the obligation. EDM Mach. Sales, Inc. v. Harrison (In re Harrison), 301 B.R. 849, 854 (Bankr.N.D.Ohio 2003) (citations omitted). Intent to deceive requires proof that the Debtor made false representations that he knew or should have known would convince the Plaintiff to provide property or services. Copeland, 291 B.R. at 765-66. “ ‘Fraudulent intent requires an actual intent to mislead, which is more than mere negligence .... A “dumb but honest” [debtor] does not satisfy the test.’ ” Copeland, 291 B.R. at 766 (quoting Palmacci v. Umpierrez, 121 F.3d 781, 788 (1st Cir.1997)). Fraudulent intent may be inferred by examining the Debtor’s conduct to determine if he presented the Plaintiff with “ ‘a picture of deceptive conduct ... indicating] an intent to deceive.’ ” Copeland, 291 B.R. at 766 (quoting Wolf v. McGuire (In re McGuire), 284 B.R. 481, 492 (Bankr.D.Colo.2002)). Finally, § 523(a)(2)(A) also requires justifiable reliance by the Plaintiff; i.e., it must prove that it actually relied on the Debtor’s representations and that, based upon the facts and circumstances known at the time, such reliance was justifiable. Copeland, 291 B.R. at 767. Justifiable reliance can be found even if the Plaintiff “ ‘might have ascertained the falsity of the representation had [it] made an investigation.’ ” Copeland, 291 B.R. at 767 (quoting McCoy, 269 B.R. at 198). The Plaintiff argues that the issues required for nondischargeability under § 523(a)(2)(A) have already been determined through the Judgment, and accordingly, collateral estoppel preludes re-litigation of the issues of misrepresentation, fraud, and justifiable reliance. Pursuant to the Full Faith and Credit Statute, “judicial proceedings ... [of any State] shall have" }, { "docid": "13636837", "title": "", "text": "is convinced that the Debtor acted with gross recklessness as to the truth of the Closing Documents by not reading them prior to signing them. Her explanation that she was only signing away her interest in the recipes coupled with her testimony that she signed the Closing Documents without reading them because she relied upon and trusted Mr. Copeland is not sufficient when examined along with the myriad of misrepresentations made to the Plaintiffs and the Debtor’s education and obvious intelligence. B A subjective measure is used to determine a debtor’s intent to deceive, the second Re.mhe.rt element. Rembert, 141 F.3d at 281 (citing Field v. Mans, 516 U.S. 59, 116 S.Ct. 437, 444, 133 L.Ed.2d 351 (1995)). A debtor intends to deceive a creditor “when the debtor makes a false representation which the debtor knows or should have known would induce another to advance goods or services to the debt- or.” Bernard Lumber Co. v. Patrick (In re Patrick), 265 B.R. 913, 916 (Bankr.N.D.Ohio 2001). “Fraudulent intent requires an actual intent to mislead, which is more than mere negligence.... A ‘dumb but honest’ [debtor] does not satisfy the test.” Palmacci, 121 F.3d at 788 (citations omitted). A debtor’s fraudulent intent may be inferred from the totality of the circumstances. The bankruptcy court must consider whether the totality of the circumstances “presents a picture of deceptive conduct by the debtor which indicates an intent to deceive the creditor.” The court may consider not only the debtor’s conduct at the time of the representations, but may consider subsequent conduct, to the extent that it provides an indication of the debtor’s state of mind at the time of the actionable representations. Wolf v. McGuire (In re McGuire), 284 B.R. 481, 492 (Bankr.D.Colo.2002) (quoting Groetken v. Davis (In re Davis), 246 B.R. 646, 652 (10th Cir. BAP 2000) (citations omitted)). “A creditor can present proof of surrounding circumstances from which a[c]ourt can infer a dishonest intent.” McCoy, 269 B.R. at 199. Proving the Debtor’s intent to defraud is similar to proving the Debtor’s knowledge and/or recklessness as to the falsity of the representations" }, { "docid": "13636836", "title": "", "text": "the child is now at a fifth grade level in that subject. Additionally, the Debtor admitted that she and Mr. Copeland purchased a house in the past and later took out a home equity line of credit on the house. In both cases, she was required to sign documents, and she knew that she, as well as Mr. Copeland, was obligated on the loans. The Plaintiffs have not submitted evidence sufficient to rebut the Debtor’s assertions that she did not know that the Closing Documents contained material misrepresentations. In fact, the only rebuttal evidence provided by the Plaintiffs was their testimony that the Debtor was present at the majority of the Closing, that she talked with Mr. Copeland throughout the Closing, and that she never read any of the Closing Documents before executing them. On the other hand, the Debtor’s cavalier demeanor regarding the contents of the documents that she signed and her own responsibility to others regarding what they represented exhibit reckless behavior, with no concern for the consequences of her actions. The court is convinced that the Debtor acted with gross recklessness as to the truth of the Closing Documents by not reading them prior to signing them. Her explanation that she was only signing away her interest in the recipes coupled with her testimony that she signed the Closing Documents without reading them because she relied upon and trusted Mr. Copeland is not sufficient when examined along with the myriad of misrepresentations made to the Plaintiffs and the Debtor’s education and obvious intelligence. B A subjective measure is used to determine a debtor’s intent to deceive, the second Re.mhe.rt element. Rembert, 141 F.3d at 281 (citing Field v. Mans, 516 U.S. 59, 116 S.Ct. 437, 444, 133 L.Ed.2d 351 (1995)). A debtor intends to deceive a creditor “when the debtor makes a false representation which the debtor knows or should have known would induce another to advance goods or services to the debt- or.” Bernard Lumber Co. v. Patrick (In re Patrick), 265 B.R. 913, 916 (Bankr.N.D.Ohio 2001). “Fraudulent intent requires an actual intent to mislead, which" }, { "docid": "13636835", "title": "", "text": "equipment being sold, and the due diligence of Mr. Copeland and the Debtor as sellers in providing financial information to the Plaintiffs. See Trial Ex. 8; Trial Ex. 11. When the Debtor signed the Closing Documents, she became responsible for their content, regardless of her reasons for signing them. The Debtor admitted that she could have read the Closing Documents before signing them, but that she made the conscious choice not to read them. When questioned about whether she believed that she owed an obligation to anyone else, other than herself or Mr. Copeland, regarding the contents of documents that she has signed without reading, the Debtor responded in the negative. The court is concerned by this testimony and the Debtor’s apparent apathy and indifference concerning docu ments that she has executed and the consequences imposed upon others as a result thereof. The Debtor is an intelligent, educated, articulate woman with some business sense. At trial, she boasted proudly that she has been home-schooling her oldest child in Economics for approximately four years, and that the child is now at a fifth grade level in that subject. Additionally, the Debtor admitted that she and Mr. Copeland purchased a house in the past and later took out a home equity line of credit on the house. In both cases, she was required to sign documents, and she knew that she, as well as Mr. Copeland, was obligated on the loans. The Plaintiffs have not submitted evidence sufficient to rebut the Debtor’s assertions that she did not know that the Closing Documents contained material misrepresentations. In fact, the only rebuttal evidence provided by the Plaintiffs was their testimony that the Debtor was present at the majority of the Closing, that she talked with Mr. Copeland throughout the Closing, and that she never read any of the Closing Documents before executing them. On the other hand, the Debtor’s cavalier demeanor regarding the contents of the documents that she signed and her own responsibility to others regarding what they represented exhibit reckless behavior, with no concern for the consequences of her actions. The court" } ]

[ { "docid": "10325881", "title": "", "text": "we have yet to address this question with respect to the presidential communications privilege, we have said with respect to the deliberative process privilege that “the particular purpose for which a FOIA plaintiff seeks information is not relevant in determining whether FOIA requires disclosure.” In re Sealed Case, 121 F.3d at 737 n. 5. Because the presidential communications privilege “is more difficult to surmount” than the deliberative process privilege, id. at 746, we conclude that it, too, is insurmountable here. This brings us finally to Document 87— a one-page memorandum from the Department of Defense Office of General Counsel to the Counsel to the President, which the district court found exempt from disclosure under the deliberative process privilege. Although not disputing that the document qualifies for the deliberative process privilege, Loving argues that the public interest in the document overcomes the privilege. He also argues that even if the privilege applies, the district court erred by failing to inspect the document to determine whether it contains segregable factual portions that may be disclosed. In re Sealed Case forecloses the first argument for the reasons described above. 121 F.3d at 737 & n. 5. The second claim fails as well. Although Loving is correct that the government has the “burden of demonstrating that no reasonably segregable information exists within ... documents withheld” under the deliberative process privilege, Army Times, 998 F.2d at 1068, district courts have “broad discretion” to decide whether in camera review is necessary to determine whether the government has met its burden, Armstrong v. Executive Office of the President, 97 F.3d 575, 577-78 (D.C.Cir. 1996). Here the district court relied on the very factors that we have previously deemed sufficient for this determination, i.e., the description of the document set forth in the Vaughn index and the agency’s declaration that it released all segregable material. See Johnson v. Executive Office for U.S. Att’ys, 310 F.3d 771, 776 (D.C.Cir.2002) (“The combination of the Vaughn index and the affidavits ... are sufficient to fulfill the agency’s obligation to show with ‘reasonable specificity’ why a document cannot be further segregated.”). The" } ]

[ { "docid": "497051", "title": "", "text": "the agency’s declaration. explained .that -“documents were processed to achieve maximum disclosure” and “further disclosure or attempt to describe information withheld would identify information protected by one of the FOIA exemptions”); see also Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir.1973) (agency must state “in detail which portions of the document are disclosable and which are allegedly exempt”). And, although the • “quantum- of evidence” required .to rebut the presumption that the defendants “complied with the obligation to disclose reasonably segregable material” is not clear, Sussman, 494 F.3d at 1117 (citations omitted), the Court is not persuaded by the plaintiffs contention that, merely because the defendants released additional information from the FIS after their initial decision to withhold the entire document, Opp’n at 9-10, the defendants’ representations regarding segregability at this juncture are insufficient, see Hodge v. FBI, 703 F.3d 575, 582 (D.C.Cir.2013) (agency’s subsequent disclosure of previously withheld information did not demonstrate that agency was improperly withholding information). The Court therefore concludes that the defendants have disclosed all reasonably seg-regable information. D. In Camera Review The plaintiff asserts that the Court should conduct an in camera review of the withheld portions of the FIS and EFI Model to determine whether , the defendants properly withheld these materials under Exemption 7(E). Opp’n at 5-7. The District of Columbia Circuit “has interpreted [the FOIA] to give district court judges broad discretion in determining whether in camera review is appropriate.” Armstrong v. Exec. Office of the President, 97 F.3d 575, 577-78 (D.C.Cir.1996) (citations omitted); see also 5 U.S.C. § 552(a)(4)(B) (providing that the district court “may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld — ” (emphasis added)). Thus, “[if] a district court believes that in camera inspection is unnecessary- ‘to make a responsible de novo determination on the claims of exemption, it acts within its broad discretion by declining to conduct such a review.’ ” Juarez v. Dep’t of Justice, 518 F.3d 54, 60 (D.C.Cir.2008) (quoting Carter v. Dep’t of Commerce, 830 F.2d 388, 392 (D.C.Cir.1987)). Moreover, this" }, { "docid": "9068136", "title": "", "text": "judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.' \" (alteration adopted) (quoting Consumer Fed'n , 455 F.3d at 287 ) ); CREW , 746 F.3d at 1088 (noting that an agency's burden is sustained by submitting affidavits that \"describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith\" (quoting Larson v. Dep't of State , 565 F.3d 857, 862 (D.C. Cir. 2009) ) ); Oglesby v. U.S. Dep't of Army , 79 F.3d 1172, 1176 (D.C. Cir. 1996) (instructing that an agency's description \"should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection[,] ... [which] serves the purpose of providing the requestor with a realistic opportunity to challenge the agency's decision\"). \"Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible.' \" Judicial Watch, Inc. v. U.S. Dep't of Def. , 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting ACLU v. U.S. Dep't of Def. , 628 F.3d 612, 619 (D.C. Cir. 2011) ); Larson , 565 F.3d at 862 (quoting Wolf v. CIA , 473 F.3d 370, 374-75 (D.C. Cir. 2007) ). The FOIA provides federal courts with the power to \"enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.\" 5 U.S.C. § 552(a)(4)(B). District courts must \"determine de novo whether non-disclosure was permissible,\" Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec. , 777 F.3d 518, 522 (D.C. Cir. 2015), by reviewing the Vaughn index and any supporting declarations \"to verify the validity of each claimed exemption,\" Summers v. Dep't of Justice , 140 F.3d 1077, 1080 (D.C. Cir. 1998). In addition, the court" }, { "docid": "12165512", "title": "", "text": "erred by not conducting in camera review of the redacted documents. We interpret Pacific Fisheries’ first argument as a challenge to the sufficiency of the factual record on which the district court based its decision. We conclude that the record was insufficient because it did not provide Pacific Fisheries or the district court with specific enough information to determine whether the IRS had properly segregated and disclosed factual portions of those documents that the IRS claimed were exempt under the deliberative process privilege but not the attorney work-product privilege. We have identified five pages of responsive documents that meet this description. Although Declaration II states that Newsome attempted to segregate all factual portions of these documents, that statement is too conclusory to meet the agency’s burden. Given the inadequacy of the factual record, the district court erred in granting the IRS’s motion for summary judgment on this point. On remand the district court must make specific findings as to whether factual information has been properly segregated and disclosed in all documents or portions of documents that the IRS claims are exempt from disclosure under the deliberative process privilege but not the attorney work-product privilege. See Church of Scientology of Cal., 611 F.2d at 744. In order to assist the district court, the IRS should submit affidavits describing in more detail the withheld portions of these documents so that both the district court and Pacific Fisheries can evaluate the government’s claims of exemption. If the government is unable to provide sufficiently specific affidavits, the district court should review the documents in camera to determine whether the factual portions were properly segregated and disclosed. See Harvey’s Wagon Wheel, Inc. v. NLRB, 550 F.2d 1139, 1143 (9th Cir.1976) (noting that in camera review is “appropriate and perhaps necessary” where there is a factual dispute as to the nature of the documents withheld). Ill We affirm the district court order in so far as it held that factual portions of documents withheld pursuant to the attorney work-product privilege need not be segregated and disclosed. We reverse the district court order in so far as" }, { "docid": "21613837", "title": "", "text": "OCIJ’s complaint resolution decisions. The district court rejected each of AILA’s arguments and ultimately granted summary judgment to the government. Am. Immigration Lawyers Ass’n v. Exec. Office for Immigration Review (AILA II), 110 F.Supp.3d 230, 232 (D.D.C. 2015); Am. Immigration Lawyers Ass’n v. Exec. Office for Immigration Review, 76 F.Supp.3d 184, 193 (D.D.C. 2014). AILA now appeals. II. AILA challenges the district court’s decisions concerning: (a) the validity of the categorical redaction of immigration judges’ names pursuant to Exemption 6; (b) the permissibility of redacting ostensibly non-responsive information within responsive records; and (c) the applicability of FOIA’s affirmative disclosure requirement to complaint resolutions. We disagree with the district court’s resolution of the first two issues and remand for further proceedings. As to the third issue, we affirm. A. We first consider EOIR’s blanket redaction of immigration judges’ names under FOIA’s Exemption 6. The Supreme Court has explained that FOIA’s exemptions are “explicitly made exclusive and must be narrowly construed.” Milner v. Dep’t of Navy, 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (internal citations and quotation marks omitted). The agency bears the burden to establish the applicability of a claimed exemption to any records or portions of records it seeks to withhold. See Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice (CREW), 746 F.3d 1082, 1088 (D.C. Cir. 2014). Our review calls for us to “ascertain whether the agency has sustained its burden of demonstrating that the documents requested are ... exempt from disclosure.” Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (citations omitted). An agency can carry its burden by submitting a Vaughn index, see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), along with affidavits from agency employees that “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith,” CREW, 746 F.3d at 1088 (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009))." }, { "docid": "20379670", "title": "", "text": "insufficient to defeat the good faith presumption that otherwise cloaks the agency’s declaration. For the same reason, the plaintiffs request for in camera review is denied. Pl.’s Sur-reply at 8. While district courts generally enjoy broad discretion to conduct in camera review in FOIA proceedings, the D.C. Circuit has cautioned that such review is “neither necessary nor appropriate” where an agency’s affidavits “standing alone were sufficiently specific to place the challenged documents within the exemption categories, and the plaintiffs [do] not contest the contents of the with-holdings or present any evidence contradicting the affidavits or suggesting bad faith.” Larson, 565 F.3d at 870 (internal citations and quotations omitted); see also ACLU, 640 Fed-Appx. at 12 (“finding] it unnecessary to review the documents to determine whether the information has been properly withheld” under Exemption 1 given the sufficiency of the agency declaration). Moreover, where an agency’s with-holdings implicate national security concerns, such review is “particularly a last resort[, and] a court should not resort to it routinely on the theory that ‘it can’t hurt.’” Id, at 10 (quoting ACLU, 628 F.3d at 626). Here, the plaintiff has not presented any credible evidence that the CIA’s two declarations—detailing, document by document, the information redacted—was inaccurate or issued in bad faith. In sum, the CIA’s search was adequate to locate all responsive documents, the exemptions invoked to withhold certain information were properly asserted, and all reasonably segregable information has been released. Accordingly, summary judgment is granted to the CIA as to the plaintiffs FOIA claim. The plaintiffs cross-motion for summary judgment in its favor with respect to “all withholdings made pursuant to the CIA Act of 1949 which are not personnel-related” is denied as moot, because in the final analysis, the CIA does not appear to have withheld any information pursuant to the CIA Act that is not personnel related. B. Second Cause of Action—Challenging CIA’s Aggregation of the 2014 FOIA Requests The plaintiffs second claim alleges that its two FOIA requests—one request ing documents about Erich Mielke that are created or maintained by the MP AC or OLA and the second requesting" }, { "docid": "5118441", "title": "", "text": "course would have been for the FBI to conduct its segregability review before notifying Plaintiff of its decision not to disclose any records. The FBI’s failure to do so, however, is not fatal to its defense. Hardy’s declaration is entitled to good faith, and Plaintiff has not come forward with a sufficient “quantum of evidence” to overcome the presumption that the agency complied with its duty to segregate non-exempt material. Sussman, 494 F.3d at 1117. The court, therefore, is satisfied that the FBI conducted a segregability review. D. In Camera Review Plaintiff asks the court to conduct an in camera review of the withheld material. Pl.’s Reply at 7. The Court of Appeals has instructed district courts not to conduct in camera reviews unless unavoidable. Crooker, 789 F.2d at 67. An in camera review may be required when the ' agency affidavit is insufficiently detailed or ■ there is evidence of bad faith on the part of the agency. Armstrong v. Exec. Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996). Neither of those conditions is present here. Accordingly, the court declines to conduct an in camera review. y. CONCLUSION For the foregoing reasons, the court grants Defendants’ Motion for Summary Judgment and denies Plaintiffs Motion for Summary Judgment. A separate Order accompanies this Memorandum Opinion. . The parties agreed to brief only the applicability of Exemption 7(A) in their cross-emotions for summary judgment. Jt, Status Report, ECF No. 11, at 2. Defendants have reserved the right to invoke any other applicable exemptions if the court denies their motion for summary judgment. Defs/ Mot, at 11 n.2. . The court also remanded the matter for the district court to determine \"how the disclosure of documents relating to DeLay would interfere with” any ongoing investigation. See id. The court will discuss that requirement below. . Thé FBI grouped the records into document types, asserting that providing a document-by-document description \"would undermine the very interests that the FBI seeks to protect, under Exemption 7(A).” Hardy Decl. ¶ 42; see Prison Legal News v. Samuels, 787 F.3d 1142, 1149 (D.C. Cir." }, { "docid": "4045847", "title": "", "text": "line by line review of the responsive records.” Hardy Decl. ¶24. Defendant also provided a description as to why it withheld particular documents — and even why it withheld particular pages — in whole or in part following that review. Defendant similarly avers that it “has made every effort to provide plaintiff with all material in the public domain and has taken all reasonable efforts to ensure that no segregable, nonexempt portions were withheld from the plaintiff.” Id. Plaintiffs only argument in response is that the sheer volume of pages withheld under the deliberate process doctrine “suggests that the FBI likely has failed to make an adequate effort to segregate non-exempt material from exempt material, as FOIA requires.” FPF MSJ at 35. The question is not whether Defendant withheld numerous pages, but rather whether they were properly withheld and segregated. Plaintiffs speculative suggestion is not enough to overcome the presumption of good faith. Hamdan, 797 F.3d at 779. . vii. In Camera Review The Court can review documents in camera to determine whether exemptions have been properly asserted. 5 U.S.C. § 552(a)(4)(B). In camera inspection, however, should “not be resorted to lightly,” Lewis v. IRS, 823 F.2d 375, 378 (9th Cir. 1987), and is “disfavored” where “the government sustains its burden of proof by way of its testimony or affidavits.” Lion Raisins v. Dep’t of Agric., 354 F.3d 1072, 1079 (9th Cir. 2004). “In camera inspection is particularly a last resort in national security situations like this case — a court should not resort to it routinely on the theory that it can’t hurt.” ACLU v. Dep’t of Def, 628 F.3d 612, 626 (D.C. Cir. 2011). The Court finds that in camera review is unnecessary here as Defendant already provided sufficiently detailed factual information in support of its exemptions in the Hardy Declarations and Vaughn Index. As discussed, Plaintiff has failed to overcome the good faith presumption to which they are entitled. Hamdan, 797 F.3d at 770. IY. CONCLUSION For the foregoing reasons, the Court finds that Defendant is entitled to summary judgment on Plaintiffs FOIA claim. Accordingly, Defendant’s Motion" }, { "docid": "19782111", "title": "", "text": "is “neither necessary [n]or appropriate” to conduct such a review in situations where “the agency meets its burden by means of affidavit[,]” Hayden v. NSA, 608 F.2d 1381, 1387 (D.C.Cir.1979). “If the agency’s affidavits ‘provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents.’ ” Larson, 565 F.3d at 870 (quoting Hayden, 608 F.2d at 1387). Put another.way, if the government’s affidavits themselves demonstrate that the document at issue qualifies for a FOIA Exemption, then this Court should not proceed further. See ACLU, 628 F.3d at 625; Halperin, 629 F.2d at 148. As already explained, such is the case here. UNROW’s arguments to the contrary are entirely unpersuasive. First, UNROW suggests that in camera review is necessary to determine whether the responsive document is identical to The Guardian document, on the theory that, if this is so, it confirms UNROW’s interpretation of State’s use of the word “identical” in the July 5th letter. (See Pl.’s Br at 37.) But this Court has already rejected UN-ROW’s interpretation based on the plain language of the letter,\" supported by affidavit and by State Department policy. (See Section III.B.1, supra) UNROW also appears to confuse what is necessary with what is sufficient — while it is necessary that the withheld document and The Guardian document be identical for UN-ROW’s interpretation of the July 5th letter to prevail, that fact alone would hardly be sufficient to establish the letter’s meaning; that is, even if the documents are identical, State could nevertheless have intended to use the adjective to refer to the DIA and State documents in the manner Hackett indicated. Thus, the proper inquiry is not whether or not the withheld document and The Guardian document are actually identical, but whether or not State intended to convey as much in its letter to UNROW. In camera review cannot resolve that question, and this Court declines to conduct such a" }, { "docid": "18137381", "title": "", "text": "is a “search engine [that] returns data from a multitude of sources based on a specific inquiry.” Decl. Kelly McClanahan ¶ 6 (June 17, 2013). All databases are searched by some kind of specific inquiry. That says nothing about whether the DIA searches the database by personal identifier. Nor, contrary to Mobley’s assertion, do the statements made to his attorney undercut the good faith presumptively accorded Williams’ declaration. Williams stated that the DIA database consisted of e-mail traffic to and from other intelligence agencies, which is consistent with what DIA told Mobley’s lawyer — that the database is a search engine that draws “data from a multitude of sources.” McClanahan Decl. ¶ 6. Accordingly, the district court did not err in its application of the Privacy Act. V. Finally, Mobley’s contention that the district court abused its discretion when it twice declined to review in camera an FBI document, which he claims was improperly classified, is unpersuasive. At its discretion, a district court “may examine the contents of ... agency records in camera....” 5 U.S.C. § 552(a)(4)(B). “If the agency’s affidavits provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents.” Am. Civil Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612, 626 (D.C.Cir.2011) (internal quotation marks omitted). When an agency meets its burden through affidavits, “in camera review is neither necessary nor appropriate,” and “[i]n camera inspection is particularly a last resort in national security situations like this case.” Larson v. Dep’t of State, 565 F.3d 857, 870 (D.C.Cir.2009) (internal quotation marks omitted). The court has stated that, in some circumstances, district courts should conduct in camera review of allegedly FOIA-exempt documents, as, for example, where the affidavits are too con-clusory to permit de novo review of the agency exemption decision or where there is tangible evidence of agency bad faith. Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 392-93 (D.C.Cir.1987)." }, { "docid": "14615634", "title": "", "text": "Court has observed, in camera review has convinced it that the challenged redactions are not part of the agency’s “final version.” In sum, the Court finds that Defendants properly redacted Document 6 under the deliberative-process privilege, and it will thus grant them summary judgment on that point. C. Segregability The last issue that the Court must address is segregability. FOIA re quires that “[a]ny reasonably segregable portion of a record ... be provided to any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). Accordingly, “non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” Mead Data Central, Inc., v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C.Cir.1977). Still, an agency is not obligated to segregate non-exempt material if “the excision of exempt information would impose significant costs on the agency and produce an edited document with little informational value.” Neufeld v. IRS, 646 F.2d 661, 666 (D.C.Cir.1981), overruled on other grounds by Church of Scientology of California v. IRS, 792 F.2d 153 (D.C.Cir.1986). While the Government is “entitled to a presumption that [it] complied with the obligation to disclose reasonably segregable material,” Hodge v. FBI, 703 F.3d 575, 582 (D.C.Cir.2013), this presumption of compliance does not obviate its obligation to carry its evidentiary burden and fully explain its decisions on seg-regability. See Mead Data, 566 F.2d at 261. The agency must provide “a detailed justification and not just conclusory statements to demonstrate that all reasonably segregable information has been released.” Valfells v. CIA, 717 F.Supp.2d 110, 120 (D.D.C.2010) (internal quotation marks omitted); see also Armstrong v. Exec. Office of the President, 97 F.3d 575, 578 (D.C.Cir.1996) (determining Government affidavits explained nonsegregability of documents with “reasonable specificity”). “In making a determination as to segrega-bility ... a district court judge ‘may examine the contents of ... agency records in camera ’.... This Circuit has interpreted this language to give district court judges broad discretion in determining whether in camera review is appropriate.” Id. at 577-78 (citations omitted). Plaintiff queries whether Defendants’ declaration on segregability is sufficient" }, { "docid": "16736615", "title": "", "text": "sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents.’ ” Larson, 565 F.3d at 870 (quoting Hayden v. N.S.A., 608 F.2d 1381, 1387 (D.C.Cir.1979)). “When the agency meets its burden by means of affidavits, in camera review is neither necessary nor appropriate.” Hayden, 608 F.2d at 1387. In camera inspection is particularly a last resort in national security situations like this case — a court should not resort to it routinely on the theory that “it can’t hurt.” Larson, 565 F.3d at 870. The ACLU claims that in camera review of the withheld information is appropriate in this case because there is evi dence of bad faith by the CIA. See Spirko v. U.S. Postal Service, 147 F.3d 992, 996 (D.C.Cir.1998) (stating that “in camera inspection may be particularly appropriate when ... there is evidence of bad faith on the part of the agency”). The ACLU argues that differences between the government’s first and second redactions of the CSRT documents establish that the government acted in bad faith. In the ACLU’s view, information disclosed during the second FOIA review demonstrates that the CIA improperly withheld information during the initial review, proving that the CIA abused its classification authority and therefore acted in bad faith. The ACLU’s claim that the government acted in bad faith is meritless. None of the information originally redacted but later disclosed after the documents were reprocessed demonstrates that the CIA improperly withheld information. The additional disclosures cited by the ACLU all pertain to methods of interrogation and conditions of confinement used or allegedly used by the CIA; the same kind of information that the government still wishes to withhold under exemptions 1 and 3. See, e.g., Brief for the Plaintiffs-Appellant at 41-42, A.C.L.U. v. Dep’t of Defense, No. 09-5386 (D.C.Cir. Feb. 24, 2010) (citing Abu Zubaydah’s complaints about the injuries he incurred “after months of suffering and torture,” A1 Nishiri’s allegation that" }, { "docid": "14615635", "title": "", "text": "792 F.2d 153 (D.C.Cir.1986). While the Government is “entitled to a presumption that [it] complied with the obligation to disclose reasonably segregable material,” Hodge v. FBI, 703 F.3d 575, 582 (D.C.Cir.2013), this presumption of compliance does not obviate its obligation to carry its evidentiary burden and fully explain its decisions on seg-regability. See Mead Data, 566 F.2d at 261. The agency must provide “a detailed justification and not just conclusory statements to demonstrate that all reasonably segregable information has been released.” Valfells v. CIA, 717 F.Supp.2d 110, 120 (D.D.C.2010) (internal quotation marks omitted); see also Armstrong v. Exec. Office of the President, 97 F.3d 575, 578 (D.C.Cir.1996) (determining Government affidavits explained nonsegregability of documents with “reasonable specificity”). “In making a determination as to segrega-bility ... a district court judge ‘may examine the contents of ... agency records in camera ’.... This Circuit has interpreted this language to give district court judges broad discretion in determining whether in camera review is appropriate.” Id. at 577-78 (citations omitted). Plaintiff queries whether Defendants’ declaration on segregability is sufficient to carry its burden. Although the Court is inclined to side with the Government on that question, it need not delve too deeply, as its own in camera review of the materials suffices to persuade it that there are no segregability problems in this case. All seven contested documents feature targeted redactions, with individual words and sentences (as well as a few paragraphs) clipped to remove exempt information. Defendants, moreover, “reconsidered, at AIC’s request, the redactions made in the ... documents at issue and reduced the number of redactions whenever possible.” Suzuki Deck, ¶ 50. This shows that Defendants made the required effort to segregate and disclose those portions that could be released. The nonexempt portions of these documents that have been redacted are thus “inextricably intertwined with exempt portions” and need not be further segregated. Mead Data, 566 F.2d at 260. In a last-ditch effort to call Defendants’ segregability analysis into question, AIC points out that CBP “withh[eld] ... information that [the agency] itself released either in this litigation or under other circumstances.” Opp." }, { "docid": "19439564", "title": "", "text": "nonexempt information that may be reasonably segregated and released.\" Stein Supp. Decl., Ex. 19 at 14. As explained below, the Court will grant the State Department an opportunity to substantiate its claim of deliberative process privilege over the document and is not yet in a position to reach the question of segregability. D. Revised Vaughn Submissions \"[A] district court should not undertake in camera review of withheld documents as a substitute for requiring an agency's explanation of its claimed exemptions in accordance with Vaughn .\" Spirko v. U.S. Postal Service , 147 F.3d 992, 997 (D.C. Cir. 1998). Rather, \"[t]he district court should first offer the agency the opportunity to demonstrate, through detailed affidavits and oral testimony, that the withheld information is clearly exempt and contains no segregable, nonexempt portions.\" Id. (citation and internal quotation marks omitted). \"If the agency fails to provide a sufficiently detailed explanation to enable the district court to make a de novo determination of the agency's claims of exemption, the district court then has several options, including inspecting the documents in camera, requesting further affidavits, or allowing the plaintiff discovery.\" Id. The Court finds it appropriate, at this juncture, to provide the State Department with the opportunity to either conduct a search for documents responsive to the 12997 request or to provide further substantiation for the agency's claim that such a search would be unreasonably burdensome. The Court also finds it appropriate to allow the State Department to provide further substantiation of the grounds for its withholdings with respect to the information and document claimed exempt under FOIA Exemption 5 and with respect to the identities of background briefers. Cf. Elec. Frontier Found. v. U.S. Dep't of Justice , 826 F.Supp.2d 157, 174-75 (D.D.C. 2011) (\"Having found the DOJ's Vaughn submissions inadequate, the Court has several options regarding how to proceed in this case ... [T]he Court finds that the best approach is to direct the agency to revise their Vaughn submissions, taking into account the deficiencies identified by the Court.\"). The Court will defer ruling on the applicability of the deliberative process privilege and" }, { "docid": "19439563", "title": "", "text": "the Court finds that disclosure of the redacted email domain information would not be proper. Accordingly, summary judgment on this issue is granted in favor of the State Department. C. Segregability FOIA mandates that \"[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.\" 5 U.S.C. § 552(b). \"This provision requires agencies and courts to differentiate among the contents of a document rather than to treat it as an indivisible 'record' for FOIA purposes.\" Fed. Bureau of Investigation v. Abramson , 456 U.S. 615, 626, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) ; accord Sussman v. U.S. Marshals Serv. , 494 F.3d 1106, 1116 (D.C. Cir. 2007) (\"Before approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld.\"). With respect to the document in Category 15, the State Department has indicated that it \"conducted thorough review of the document and determined that there is no meaningful, nonexempt information that may be reasonably segregated and released.\" Stein Supp. Decl., Ex. 19 at 14. As explained below, the Court will grant the State Department an opportunity to substantiate its claim of deliberative process privilege over the document and is not yet in a position to reach the question of segregability. D. Revised Vaughn Submissions \"[A] district court should not undertake in camera review of withheld documents as a substitute for requiring an agency's explanation of its claimed exemptions in accordance with Vaughn .\" Spirko v. U.S. Postal Service , 147 F.3d 992, 997 (D.C. Cir. 1998). Rather, \"[t]he district court should first offer the agency the opportunity to demonstrate, through detailed affidavits and oral testimony, that the withheld information is clearly exempt and contains no segregable, nonexempt portions.\" Id. (citation and internal quotation marks omitted). \"If the agency fails to provide a sufficiently detailed explanation to enable the district court to make a de novo determination of the agency's claims of exemption, the district court then has several options, including inspecting the documents" }, { "docid": "12849694", "title": "", "text": "records or any part thereof shall be withheld under any of the [statutory] exemptions.” Plaintiffs Supplemental Response to Defendant’s Motions to Dismiss or Alternatively for Summary Judgment (“PL’s Supp.”), Affidavit of James E. Taylor (“Taylor Aff.”) ¶ 8 (citations omitted). Plaintiff cites as authority for his position Albuquerque Publ’g Co., 726 F.Supp. at 857, where the court found it necessary to conduct an in camera review. In Albuquerque Publ’g Co., the court found in camera inspection necessary for the limited purpose of reviewing documents withheld by the agency on the basis of FOIA Exemption 7(E), which “pertains to investigative techniques and procedures generally unknown to the public.” Id. However, the Albuquerque Publ’g Co. court found such review necessitated by the fact that the agency had provided the court “with insufficient information about the nature of the techniques[ ]” at issue. Id. Significantly, the court upheld the agency’s withholdings pursuant to FOIA Exemptions 7(C) and 7(D) without an in camera inspection. The Court finds that no such inspection is warranted here. The defendant’s declaration and its Vaughn index sufficiently provide the Court with information about the nature of the withheld documents and the redactions, and thus no in camera review is needed to further assist the Court in deciding whether disclosure is required. See Hatcher, 910 F.Supp. at 3 (denying requestor’s request for in camera review of withheld and redacted documents where the “Vaughn Index ... and ... affidavit ... adequately describe[d] the withheld documents and redactions, the claimed exemptions and the reason why such exemptions are applica ble.... Therefore, no in camera inspection [was] necessary.”), (citation omitted). Because the agency in this case has provided the Court with sufficient justification for its claimed exemption, the Court finds that no in camera review is warranted. Accordingly, plaintiffs request for in camera review is denied. SO ORDERED on this 1st day of April, 2003. ORDER In accordance with the Memorandum Opinion that is being issued contemporaneously with this Order, it is hereby ORDERED that plaintiffs Proposed Scheduling Order and Request for Vaughn Index [# 7] is denied as moot. It is further" }, { "docid": "20379669", "title": "", "text": "redactions would reveal “‘either the identities of CIA employees or the identities of various sources.’ ” Pl.’s Sur-reply at 7 (quoting Shiner Decl. ¶ 17(g)). Yet, “ ‘[sjummary judgment is warranted on the basis of agency affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.’ ” ACLU, 640 Fed.Appx. at 10 (quoting Larson, 565 F.3d at 862). The CIA here has adequately described the type of information withheld—information that would reveal the identities of sources and CIA employees— and it is not only reasonable but plausible that these four documents, all analytical documents summarizing gathered intelligence regarding East Germany and Erich Mielke, would contain text describing how this foreign intelligence was gathered and by whom—information that clearly falls within the protection of the National Security Act. The plaintiffs speculation that such text should not amount to “large blocks of text” is wholly insufficient to defeat the good faith presumption that otherwise cloaks the agency’s declaration. For the same reason, the plaintiffs request for in camera review is denied. Pl.’s Sur-reply at 8. While district courts generally enjoy broad discretion to conduct in camera review in FOIA proceedings, the D.C. Circuit has cautioned that such review is “neither necessary nor appropriate” where an agency’s affidavits “standing alone were sufficiently specific to place the challenged documents within the exemption categories, and the plaintiffs [do] not contest the contents of the with-holdings or present any evidence contradicting the affidavits or suggesting bad faith.” Larson, 565 F.3d at 870 (internal citations and quotations omitted); see also ACLU, 640 Fed-Appx. at 12 (“finding] it unnecessary to review the documents to determine whether the information has been properly withheld” under Exemption 1 given the sufficiency of the agency declaration). Moreover, where an agency’s with-holdings implicate national security concerns, such review is “particularly a last resort[, and] a court should not resort to it routinely on the theory that ‘it can’t hurt.’” Id, at" }, { "docid": "18137382", "title": "", "text": "§ 552(a)(4)(B). “If the agency’s affidavits provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents.” Am. Civil Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612, 626 (D.C.Cir.2011) (internal quotation marks omitted). When an agency meets its burden through affidavits, “in camera review is neither necessary nor appropriate,” and “[i]n camera inspection is particularly a last resort in national security situations like this case.” Larson v. Dep’t of State, 565 F.3d 857, 870 (D.C.Cir.2009) (internal quotation marks omitted). The court has stated that, in some circumstances, district courts should conduct in camera review of allegedly FOIA-exempt documents, as, for example, where the affidavits are too con-clusory to permit de novo review of the agency exemption decision or where there is tangible evidence of agency bad faith. Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 392-93 (D.C.Cir.1987). Another factor that plays into the calculus is the nature of the parties’ dispute, because “in camera review is of little help when the dispute centers not on the information contained in the documents but on the parties’ differing interpretations as to whether the exemption applies to such information.” Id. at 393. Here, as our own review confirms, the district court, after reviewing in camera the FBI’s classified declaration, acted within its sound discretion when it decided that it did not need to review the classified document in camera to conclude that the FBI withheld it as properly classified. Mobley points to no record evidence of bad faith. See id. at 392-93. Moreover, the document implicates national security, Larson, 565 F.3d at 870, and the parties’ dispute is over how to interpret the document — whether it was properly classified, Carter, 830 F.2d at 393. To the extent Mobley states in his reply brief that in camera review would also reveal that the FBI had improperly withheld records on the basis of FOIA Exemption 7(C)," }, { "docid": "16736614", "title": "", "text": "affidavit is contradicted by the record and we find no evidence of bad faith by the government. We conclude that summary judgment was warranted on the basis of the CIA’s affidavit alone. III. In Camera Review Finally, we consider the ACLU’s argument that the district court erred by failing to perform in camera review of the redacted information. This court reviews a district court’s decision whether to conduct in camera review of FOIA documents for abuse of discretion. Larson, 565 F.3d at 869; Juarez v. Dep’t of Justice, 518 F.3d 54, 60 (D.C.Cir.2008). Although Congress provided district courts the option to conduct in camera review under FOIA, the statute does not compel the exercise of that option. Larson, 565 F.3d at 869 (citing 5 U.S.C. § 552(a)(4)(B)). “Congress intended to impose no mandates upon the trial court, but instead leave the decision of whether to conduct in camera inspection to the broad discretion of the trial judge.” Center for Auto Safety v. E.P.A., 731 F.2d 16, 20 (D.C.Cir.1984). “If the agency’s affidavits ‘provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents.’ ” Larson, 565 F.3d at 870 (quoting Hayden v. N.S.A., 608 F.2d 1381, 1387 (D.C.Cir.1979)). “When the agency meets its burden by means of affidavits, in camera review is neither necessary nor appropriate.” Hayden, 608 F.2d at 1387. In camera inspection is particularly a last resort in national security situations like this case — a court should not resort to it routinely on the theory that “it can’t hurt.” Larson, 565 F.3d at 870. The ACLU claims that in camera review of the withheld information is appropriate in this case because there is evi dence of bad faith by the CIA. See Spirko v. U.S. Postal Service, 147 F.3d 992, 996 (D.C.Cir.1998) (stating that “in camera inspection may be particularly appropriate when ... there is evidence of bad faith on the part" }, { "docid": "19782110", "title": "", "text": "There Is No Factual Or Legal Basis For This Court To Review The Document At Issue In Camera Or To Require DIA To Make An Independent Disclosure Determination UNROW requests that this Court conduct an in camera review of the withheld document both to determine whether it contains officially acknowledged information that was properly withheld and to determine whether Defendants failed to conduct a segregability analysis. (See Pl.’s Br. at 36-37.) In the exercise of its “broad discretion,” Center for Auto Safety v. EPA, 731 F.2d 16, 20 (D.C.Cir.1984), this Court declines the invitation. 1. It Is Unnecessary And Inappropriate For The Court To Conduct An In Camera Review Of The Withheld Document Stated simply, Defendants have established that the responsive document logically and plausibly falls within Exemption 1 (see Section III.A, supra), and it would not be proper for this Court to conduct further review in order to second guess Defendants’ determinations. Although the FOIA certainly permits the Court to review withheld documents at the discretion of the court, 5 U.S.C. § 552(a)(4)(B), it is “neither necessary [n]or appropriate” to conduct such a review in situations where “the agency meets its burden by means of affidavit[,]” Hayden v. NSA, 608 F.2d 1381, 1387 (D.C.Cir.1979). “If the agency’s affidavits ‘provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents.’ ” Larson, 565 F.3d at 870 (quoting Hayden, 608 F.2d at 1387). Put another.way, if the government’s affidavits themselves demonstrate that the document at issue qualifies for a FOIA Exemption, then this Court should not proceed further. See ACLU, 628 F.3d at 625; Halperin, 629 F.2d at 148. As already explained, such is the case here. UNROW’s arguments to the contrary are entirely unpersuasive. First, UNROW suggests that in camera review is necessary to determine whether the responsive document is identical to The Guardian document, on the theory that, if this is so, it confirms" }, { "docid": "4045848", "title": "", "text": "been properly asserted. 5 U.S.C. § 552(a)(4)(B). In camera inspection, however, should “not be resorted to lightly,” Lewis v. IRS, 823 F.2d 375, 378 (9th Cir. 1987), and is “disfavored” where “the government sustains its burden of proof by way of its testimony or affidavits.” Lion Raisins v. Dep’t of Agric., 354 F.3d 1072, 1079 (9th Cir. 2004). “In camera inspection is particularly a last resort in national security situations like this case — a court should not resort to it routinely on the theory that it can’t hurt.” ACLU v. Dep’t of Def, 628 F.3d 612, 626 (D.C. Cir. 2011). The Court finds that in camera review is unnecessary here as Defendant already provided sufficiently detailed factual information in support of its exemptions in the Hardy Declarations and Vaughn Index. As discussed, Plaintiff has failed to overcome the good faith presumption to which they are entitled. Hamdan, 797 F.3d at 770. IY. CONCLUSION For the foregoing reasons, the Court finds that Defendant is entitled to summary judgment on Plaintiffs FOIA claim. Accordingly, Defendant’s Motion for Summary Judgment is GRANTED in its entirety, and Plaintiffs Motion for Summary Judgment is DENIED. The clerk is directed to enter judgment in favor of Defendant and close the file. IT IS SO ORDERED. . The FBI also redacted material under FOIA exemptions 6 and 7(C) and withheld duplicate documents. Gov’t MSJ at 2 n.1. Plaintiff does not challenge those withholdings. Id.: see generally FPF MSJ. . Plaintiff points to four pages from a partially redacted email thread from February 2015 that it suggests are not deliberative since they contain solicitations from an FBI employee to OGC seeking advice on agency procedure. FPF MSJ at 22. But Defendant stated that these pages were also withheld as exempt under the attorney-client privilege. Vaughn Index at 5. The Court discusses this exemption below in Section III.D.iii.a." } ]

[ { "docid": "23506366", "title": "", "text": "had the same telephone numbers, and were both run by Lancaster and his sons. Id. For purposes of ERISA, Lancaster, JDL, and DCI were “one and the same” and each was therefore a fiduciary within the meaning of § 1002(21)(A). Id. at 197-98. The district court held that Lancaster was a Fund fiduciary because “Lancaster, in effect, exercised discretionary authority and control over assets of the Fund.” Id. at 198. The Fund Trustees hired Lancaster to give advice and handle all of the Fund’s health, medical, and life insurance needs. Id. at 197. The Fund was managed by Trustees who had no experience or expertise in insurance matters. Id. at 198. They accepted every recommendation that Lancaster made concerning health and medical insurance, life insurance, and Fund investment decisions. Id. The challenge that defendants present to the district court’s findings apparently is addressed to each subsection of § 1002(21)(A). Because § 1002(21)(A) establishes a disjunctive test, however, we need only determine whether the district court correctly tethered fiduciary status to any one of the subsections. We therefore pretermit an analysis of subsection (ii), and determine whether the district court properly held Lancaster and JDL to be Fund fiduciaries pursuant to § 1002(21)(A)(i) or (in). Defendants essentially urge that Lancaster was merely a consultant and salesman, and that a professional does not become a fiduciary merely by giving professional advice and seeking reliance on that advice; that Lancaster and JDL did not cause the Fund Trustees (who were responsible for the decision making and operation of the Fund) to relinquish their independent discretion; and JDL was a claims paying administrator who performed the perfunctory and ministerial duty of processing and paying claims within the parameters of plan documents, and a third-party administrator or insurance company does not become a fiduciary merely by performing ministerial duties and processing and paying claims. 2 We consider first the district court’s finding that JDL had discretionary authority and performed functions similar to those of the plan administrator in American Fed’n of Unions. The trial court referred explicitly to JDL’s assertion that it did more as" } ]

[ { "docid": "23099181", "title": "", "text": "because they \"jointly and severally [had] authority to control and manage the operation and administration of the plan,” § 1102(a)(1). The statute also provides that any other person is a fiduciary: to the extent (i) he exercises any discretionary authority or discretionary control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. § 1002(21)(A). The district court found that each defendant except CRC was a § 1002(21)(A) fiduciary — A.P.W. and Paul Thielking be cause as FMC directors they could appoint and remove the ESOP’s trustees; Henss and Stephen Thielking because they exercised control in managing ESOP assets and provided investment advice to the ESOP; OHT as the alter ego of Henss; and the other defendants as alter ego corporations. From this general finding, the court held each fiduciary liable for all defendants’ breaches of duty. However, one who is an ERISA fiduciary only by reason of § 1002(21)(A) is liable only “to the extent” he exercises discretionary control, renders investment advice, or has discretionary administration responsibility. See Associates in Adolescent Psychiatry, S.C. v. Home Life Ins. Co., 941 F.2d 561, 569 (7th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1182, 117 L.Ed.2d 426 (1992); Leigh v. Engle, 727 F.2d 113, 133-135 (7th Cir.1984); 29 C.F.R. § 2509.75-8. Therefore, we must examine whether each defendant was responsible as a fiduciary for each of the Transactions Subject to ERISA. Henss and Stephen argue that they were not ERISA fiduciaries as a matter of law because they performed only ministerial accounting functions with respect to the ESOP. They rely upon Anoka Ortho-paedic Assoc., P.A. v. Lechner, 910 F.2d 514, 517 (8th Cir.1990), where we held that an outside attorney and a benefits consultant were not fiduciaries when providing the professional services for which they were hired. Anoka and similar cases only apply when" }, { "docid": "1644916", "title": "", "text": "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). In other words, a fiduciary within the meaning of ERISA “must be someone acting in the capacity of manager, administrator, or financial adviser to a plan.” Pegram v. Herdich, 530 U.S. 211, 222, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). To determine whether a person is subject to ERISA fiduciary duties, the court must determine the extent to which that person exercises discretionary authority, control or responsibility with respect to management or administration of the plan. See Varity Corp., 516 U.S. at 498, 116 S.Ct. 1065 (citing 29 U.S.C. § 1002(21)(A)(i) and (iii)). LeBeau asserts that Trigon exercises discretion in the administration of the plan. Specifically, LeBeau alleges she will be able to prove that “Trigon had the discretionary function to approve or deny claims submitted by plan participants such as the plaintiff deceased.” LeBeau’s Resp. in Opp’n to Third-Party Def. Trigon Insurance Company’s Mot. to Dismiss Am. Compl., at 3. LeBeau argues the need for further discovery on this issue. Trigon argues that it is not a fiduciary because the only action it took in this case was “simply to determine the employer’s eligibility to maintain a group insurance policy.” Mem. in Supp. of Trigon Insurance Company’s Mot. to Dismiss Am. Compl., at 5. At this stage, the court has substantial doubt that no facts exist that might establish Trigon did exercise discretionary authority so as to come within the statutory definition of a fiduciary. The court notes that in keeping with the remedial purpose of ERISA, the term “fiducia ry” is construed liberally. See, e.g., Farm King Supply, Inc. v. Edward D. Jones & Co., 884 F.2d 288, 291-92" }, { "docid": "1712501", "title": "", "text": "They claim that all trades on Schiffli’s account were made with the Trustees’ “approval, direction and/or ratified by Schiffli and the Trustees.” Ryan Beck’s Answer to the First Amended Complaint (“Ryan Beck’s Answer”) ¶ 20. Congress intended that the courts look to the totality of the relationship to determine whether an outside professional advisor is a fiduciary to an ERISA plan. See House Conference Rep. No. 93-1280, 93d Cong.2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 4639, 5038, 5103. The test is whether the defendant had discretionary control over plan assets or gives regular, individualized advice to be used as the primary basis for the Plan’s investment decisions. 29 U.S.C. § 1002(21)(A); 29 C.F.R. § 2510.3-21. “[I]t must be recognized that there will be situations where such consultants and advisers may because of their special expertise, in effect, be exercising discretionary authority or control ... regarding [the Plan’s] assets.” 1974 U.S.Code Cong. & Admin.News at 5103. Courts have been sensitive to the practice of “rubber stamping” investment advisors’ recommendations as to the disposition of plan assets in finding that the advisor had de facto discretionary authority. Stanton v. Shearson Lehman/American Express, Inc., 631 F.Supp. 100, 103 (N.D.Ga.1986). Thus, movants’ answer that Schiffli “ratified” the trades does not resolve the issue. It is not disputed that there was no written agreement defining the relationship between Schiffli and the defendants. For the same reasons discussed immediately above, however, this fact is not dispositive. See also Schiffli Embroidery Workers Pension Fund v. Ryan, Beck & Co., Civ. No. 91-5433, 1992 WL 249880, Slip op. at 12-13 (D.N.J. Sept. 25, 1992) (defendants may be liable as investment advisor ERISA fiduciaries even though there is no written acknowledgement of .the relationship). ■ On the other hand it has been held that the alleged fiduciary advisor must have been made aware that he was acting as an ERISA fiduciary before liability will be imposed. Omni Funding, 731 F.Supp. at 167 (citing 40 Fed. Reg. 50,813 (1975)). Here again the substance of the disputed meeting is crucial. Thus, to the extent that Ryan Beck’s motion for" }, { "docid": "13112105", "title": "", "text": "not abuse its discretion in so construing Berkshire’s waiver. A. In its motion for summary judgment, Berkshire argued that appellees’ four state-law claims were preempted under 29 U.S.C. § 1144(a) and that it was not an ERISA fiduciary. In response, appellees claimed that these positions were inconsistent because “if Berkshire is not an ERISA fiduciary, then, as a matter of law, ERISA does not preempt the state law claims against Berkshire.” Id. at 558. Because the evidence as to Berkshire’s fiduciary status was in dispute, appellees asserted that their state and ERISA claims would all have to be tried. In its reply memorandum, Berkshire responded as follows: MODIFICATION OF ORIGINAL MEMORANDUM Given [appellees’] concession that their common law claims are pre-empted if “Berkshire served as an ERISA fiduciary,” [Berkshire] will waive its argument that it was not an ERISA fiduciary. Thus, this case should proceed as an ERISA case, subject to ERISA statutes and case law interpreting it. Id. (underlining added). In addition to making this “concession,” Berkshire “argued for twenty pages” in that brief “that the statute of limitations [for ‘actual knowledge’ cases] bars the action,” but “did not respond whatsoever to [appellees’] contentions that Berkshire was an ERISA fiduciary because Meszaros exercised discretionary authority over the plans’ assets and rendered investment advice for a fee.” Id. Accordingly, the district court reasoned that Berkshire’s concession “rendered evaluation of [the fiduciary status] issue unnecessary,” and granted summary judgment for Berkshire on the state-law claims. At trial and thereafter, the district court rejected Berkshire’s attempts, through new counsel, to “recast” the scope of its waiver. Id. at 559. Indeed, after noting that “the facts as alleged in the amended complaint are substantially similar to the court’s findings of fact,” the court explained that Berkshire’s unqualified concession that it was an ERISA fiduciary was in response to the plaintiffs’ claims that Berkshire, through its agent, violated numerous common laws by mismanaging them pension plans. The court accepted the defendant’s concession, and Berkshire’s subsequent attempts to disavow the concession it made or to constrict its scope are unavailing. The court finds, therefore, that" }, { "docid": "16430637", "title": "", "text": "the line” by exercising discretionary authority or control. Mertens, 508 U.S. at 262, 113 S.Ct. at 2071-72. Attorneys may be viewed as exercising discretionary authority or control within the meaning of Section 3(14) of ERISA even when acting in an advisory capacity. According to the legislative history of the statute: While the ordinary functions of consultants and advisers to employee benefit plans ... may not be considered as fiduciary functions, it must be recognized that there will be situations where such consultants and advisers may because of their special expertise, in effect, be exercising discretionary authority or control with respect to the management or administration of such plan or some authority or control regarding its assets. In such cases, they are to be regarded as having assumed fiduciary obligations within the meaning of the applicable definition. H.R.Rep. No. 1280, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin. News 5038, 5103; see also Reich v. Lancaster, 55 F.3d 1034 (5th Cir.1995) (fund’s insurance agent deemed to be fiduciary where trustee, who had no insurance experience or expertise, accepted every recommendation made by agent); Reich v. McManus, 883 F.Supp. 1144 (N.D.Ill.1995) (denying summary judgment because insurance broker’s status as ERISA fiduciary could be established based on evidence that trustees relied exclusively on his advice); Stanton v. Shearson Lehman/American Express, Inc., 631 F.Supp. 100, 103 (N.D.Ga.1986) (professional may have fiduciary status if trustees merely “rubber stamp[ed]” his recommendations) This Court recently denied a motion to dismiss breach of fiduciary duty claims asserted against attorneys involved in the approval and consummation of ERISA fond real estate transactions, in light of allegations that they: represented to the Fund that they possessed, and held themselves out as possessing, special expertise in ... the provisions of law governing multi-employer pension trust funds, including ERISA, ...; that the defendants knew the transactions were imprudent or prohibited; that the trustees relied on the defendants’ expertise ...; and that by failing to advise the trustees on the unsuitability or prohibited nature of the investments, the defendants failed to prevent the transactions. Carpenters’ Local Union No. 964 Pension" }, { "docid": "23320613", "title": "", "text": "motion for attorneys fees because it did “not believe that there [was] a sufficient inference of bad faith” on Custer’s part. Custer appeals the district court’s dismissal of his ERISA claim, and Sweeney cross-appeals the district court’s failure to dismiss the malpractice claim with prejudice as preempted by ERISA. Sweeney also contends that the district court abused its discretion in refusing to award him attorneys fees. II We begin with Custer’s contention that the district court erred in dismissing his ERISA claim against Sweeney for breach of fiduciary duty. After affording Custer the opportunity to replead that claim, the district court observed that Custer’s amended complaint still alleged “that Sweeney was at most an attorney and consultant who took care of the ministerial, day-to-day payment of bills, securing of funds with which to meet Fund obligations, and monitoring the progress of construction and operations on Fund property.” Concluding that such activities “completely fail[ed] to establish the exercise of the type of discretion or control necessary to hold Sweeney liable as an ERISA fiduciary,” the court dismissed Custer’s ERISA claim with prejudice. Whether the district court acted properly thus depends on whether Sweeney qualifies as a “fiduciary” under ERISA. “[T]he concept of a fiduciary under ERISA is broader than the common law concept of a trustee.” Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 418 n. 3 (4th Cir.1993). It includes not only those “named [as fiduciaries] in the plan instrument, or who, pursuant to a procedure specified in the plan, [are] identified as ... fiduciaries],” 29 U.S.C. § 1102(a)(2), but any individual who de facto performs specified discretionary functions with respect to the management, assets, or administration of a plan. According to § 3(21)(A) of ERISA: [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" }, { "docid": "9596014", "title": "", "text": "breached in the performance of ERISA obligations.” In re WorldCom, Inc. ERISA Litig., 263 F.Supp.2d 745, 760 (S.D.N.Y.2003), citing Pegram, 530 U.S. at 225-26, 120 S.Ct. 2143. Fiduciary status can be determined as a matter of law at the motion to dismiss stage based on a plaintiffs allegations that the defendants were ERISA fiduciaries. See Mortgage Lenders Network USA Inc. v. CoreSource, Inc., 335 F.Supp.2d 313, 317 (D.Conn.2004), quoting LoPresti v. Terwilliger, 126 F.3d 34, 39 (2d Cir.1997) (“ ‘[W]here the facts are not in question, whether a party is an ERISA fiduciary is purely a question of law.’ ”); In re Lehman Bros. Sec. and ERISA Litig., 683 F.Supp.2d 294, at 298-300 (S.D.N.Y.2010); In re Citigroup ERISA Litig., 2009 WL 2762708, at *7-9 (S.D.N.Y. Aug. 31, 2009). ERISA provides for both named and de facto fiduciaries. ERISA requires every employee benefit plan to provide for one or more named fiduciaries that possess the “authority to control and manage the operation and administration of the Plan.” ERISA § 402(a)(1), 29 U.S.C. § 1102(a)(1). A de facto fiduciary is a fiduciary to the extent that he or she “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.” ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A). Defendants contend that the Count I Defendants, Bear Stearns and the ESOP Committee, are not fiduciaries with respect to the Plan’s investment in Bear Stearns stock and had no discretionary authority or responsibility to liquidate the Plan’s holdings of that stock. ERISA Defs’. Mem. at 19. The ERISA Plaintiffs do not allege that they paid inflated prices for their shares or that the initial purchase of Bear Stearns stock was imprudent, as their Plan shares were purchased before the Class Period. They seek holder damages, as opposed to purchaser damages, under the “make whole” theory of damages provided for under ERISA § 409(a), 29 U.S.C. § 1109(a) and allege that they are entitled to recover the Plan’s" }, { "docid": "13112103", "title": "", "text": "Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Judge MICHAEL and Senior Judge BALDOCK joined. OPINION LUTTIG, Circuit Judge: Appellees, Alan Meyer and Jorge Ordo-nez, in their capacity as trustees for certain pension plans and trusts (“the pension plans”), sued appellant, Berkshire Life Insurance Co. (“Berkshire”), in state court, bringing common-law claims for professional negligence, negligent misrepresentation or omission, deceit, and breach of fiduciary duty. The claims primarily turn on the actions of Michael Meszaros, a Berkshire insurance agent. Broadly speaking, appellees allege that Berkshire, through Meszaros, “placed excessive pension plan funds into life insurance policies, imprudently invested funds in low-yielding annuities, and repeatedly churned the plans’ assets.” J.A. 174. After Berkshire removed the case, asserting that the district court had jurisdiction under the Employee Retirement Income Security Act (“ERISA”), appellees amended their complaint to include, in the alternative, a fifth count for damages for breach of fiduciary duty under ERISA. Berkshire moved for summary judgment and, after Berkshire waived its prior argument that it was not an ERISA fiduciary, the district court dismissed appellees’ state-law claims as preempted. See Meyer v. Berkshire Life Ins. Co., 128 F.Supp.2d 831 (D.Md.2001) (“Meyer I”). The district court held a bench trial on the ERISA claim and found, in a lengthy opinion, that Meszaros acted substantially as alleged in appellees’ complaint and that Berkshire, through the actions of Mesza-ros, its agent, breached its fiduciary duties under 29 U.S.C. § 1104. The court awarded appellees damages of almost $1.3 million, plus pre- and post-judgment interest. See Meyer v. Berkshire Life Ins. Co., 250 F.Supp.2d 544 (D.Md.2003) (“Meyer II ”). The court’s decision rested heavily, though not exclusively, on its conclusion that Berkshire’s “concession” as to fiduciary status prevented Berkshire from challenging that status as to Meszaros’ alleged conduct. I. On appeal, Berkshire raises several claims of error. The only claim that we address in detail, however, is Berkshire’s assertion that the district court erred in finding that Berkshire conceded that it was an ERISA fiduciary with respect to Meszaros’ alleged actions. As explained below, we hold that the district court did" }, { "docid": "3868845", "title": "", "text": "fiduciaries when they provided plaintiff with erroneous pension estimates. Under ERISA, 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). A fiduciary within the meaning of ERISA is someone acting in the capacity of manager, administrator, or financial adviser to a plan. Pegram v. Herdrich, 530 U.S. 211, 222, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). The Sixth Circuit employs a functional test to determine fiduciary status. Briscoe v. Fine, 444 F.3d 478, 486 (6th Cir.2006); see also Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (ERISA “defines ‘fiduciary’ not in terms of formal trusteeship, but in functional terms of control and authority over the plan”). Under the statute, an administrator or manager of the plan is a fiduciary only “to the extent” that he exercises discretionary authority, control, or responsibility re speeting the management of the plan, the disposition of its assets, or the administration of the plan. Pegram, 530 U.S. at 225-226, 120 S.Ct. 2143; § 1002(21)(A). Thus, it is necessary to ask whether a person is a fiduciary with respect to the particular activity in question. Briscoe, 444 F.3d at 486. Persons performing administrative and ministerial functions are not fiduciaries. Id. at 488 (entity which performs administrative and ministerial tasks that did not involve the exercise of discretionary authority was not a fiduciary); Flacche v. Sun Life Assur. Co. of Canada (U.S.), 958 F.2d 730, 734 (6th Cir.1992) (defendant company which performed only ministerial functions for the plan was not acting as a fiduciary when it mistakenly calculated plaintiff’s retirement benefits); Baxter v. C.A. Muer" }, { "docid": "5980277", "title": "", "text": "underlying a claim also makes good sense given that fiduciary status under ERISA is not “an all-or-nothing concept.” Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 61 (4th Cir.1992). Under ERISA, a person is a fiduciary to the extent that (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.A. § 1002(21)(A) (West 1999) (emphasis added).The definition is couched in terms of functional control and authority over the plan, thus necessitating that courts “examine the conduct at issue when determining whether an individual is an ERISA fiduciary.” Hamilton v. Carell, 243 F.3d 992, 998 (6th Cir.2001). A person may be an ERISA fiduciary for some purposes and not for others. NEL’s stance in this case is illustrative: although it denies fiduciary status with respect to Appellants’ claims, it concedes that it is a fiduciary for some purposes under ERISA. Here, by conceding that their state-law claims would otherwise be preempted if NEL had admitted its fiduciary status under ERISA, Appellants effectively admit that substantively their state-law claims relate to the Plan. They could hardly do otherwise. The focus of Appellants’s state-law claims is on NEL’s management and investment of Plan assets, conduct that, irrespective of NEL’s denial of fiduciary status, clearly lies near the heartland of ERISA’s coverage. Indeed, Appellants candidly characterize their state-law claims as “alternatives” to Ruffin’s ERISA claim, a good tip off that they seek the kind of “alternate enforcement mechanism[ ]” that ERISA preempts. See Travelers, 514 U.S. at 658, 115 S.Ct. 1671. In a final effort to salvage their state-law claims, Appellants contend that our decisions in LeBlanc v. Cahill, 153 F.3d 134 (4th Cir.1998), and Custer v. Sweeney, 89 F.3d 1156 (4th Cir.1996), leave" }, { "docid": "21111236", "title": "", "text": "reimbursement under the Plan. (Pl.’s Ex. 40, Letter of November 29, 1990 from Nazemetz to Nemiroff, p. 2). II. CONCLUSIONS OF LAW A. IS APM A PROPER DEFENDANT? In Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1199 (2d Cir.1989), the Second Circuit held that, under 29 U.S.C. § 1132(d)(2), “only the plan and the administrators and trustees of the plan in their capacity as such may be held hable.” Despite this ruling, Crocco argues that APM is a proper defendant in this case because it is a plan fiduciary. She bases this claim on 29 U.S.C. § 1002(21)(A), which defines a fiduciary as anyone who “exercises any discretionary authority or discretionary control respecting management of [a] plan or exercises any authority or control respecting management or disposition of its assets ... or ... has any discretionary authority or discretionary responsibility in the administration of such plan.” However, Crocco has neglected to consider the interpretation that the Department of Labor has given this definition. According to 29 C.F.R. § 2509.75-8.D-2 (Interpretive Bulletin Relating to ERISA), “a person who performs purely ministerial functions” is not a fiduciary under 29 U.S.C. § 1002(21)(A). Among the functions that the Labor Department considers ministerial are “[application of rules determining eligibility for participation or benefits ... [processing claims; and [m]aking recommendations to others for decisions with respect to plan administration.” 29 C.F.R. § 2509.75-8.D-2. The department explains that a person performing these roles “within a framework of policies, interpretations, rules, practices and procedures made by other persons is not a fiduciary because such person does not have discretionary authority or discretionary control...” Id The status under ERISA of organizations similar to APM has been raised in several cases, and the precedents support an interpretation of the statute that would free APM of fiduciary responsibility. For example, in Klosterman v. Western General Management, Inc., 32 F.3d 1119 (7th Cir.1994), the Seventh Circuit considered a suit against a claims administrator — Western General— that was responsible for initial claims determinations. The Court of Appeals ruled that the company was not a fiduciary because “[the employer], not Western General," }, { "docid": "23320614", "title": "", "text": "dismissed Custer’s ERISA claim with prejudice. Whether the district court acted properly thus depends on whether Sweeney qualifies as a “fiduciary” under ERISA. “[T]he concept of a fiduciary under ERISA is broader than the common law concept of a trustee.” Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 418 n. 3 (4th Cir.1993). It includes not only those “named [as fiduciaries] in the plan instrument, or who, pursuant to a procedure specified in the plan, [are] identified as ... fiduciaries],” 29 U.S.C. § 1102(a)(2), but any individual who de facto performs specified discretionary functions with respect to the management, assets, or administration of a plan. According to § 3(21)(A) of ERISA: [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). While an attorney’s duty to his client is that of a fiduciary, see F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1259 (2d Cir.1987), the mere fact that an attorney represents an ERISA plan does not make the attorney an ERISA fiduciary because legal representation of ERISA plans rarely involves the discretionary authority or control required by the statute’s definition of “fiduciary.” According to the regulations promulgated by the Department of Labor— the agency charged with enforcing ERISA— an attorney or other professional service provider who represents an ERISA plan will not qualify as an ERISA fiduciary so long as he “performs purely ministerial functions ... within a framework of policies, interpretations, rules, practices and procedures made by other persons.” 29 C.F.R. § 2509.75-8(D-2); see also 29 C.F.R. § 2509.75-5(D-l) (applying ERISA’s definition of “fiduciary” to attorneys); Useden v. Acker," }, { "docid": "15057698", "title": "", "text": "claims, they note, have been rejected by other courts in recent 401(k) actions. See In re McKesson HBOC, Inc. ERISA Litig., 2002 WL 31431588, *6-7 (N.D.Cal.2002), Hull v. Policy Management, 2001 WL 1836286, *8-9. As' to the Pension Committee, Defendants argue that it had no discretion with respect to Plan administration or assets, and hence had no fiduciary duty. They cite in support the Pension Committee’s Charter (incorporated by reference into the SAC), which charges the Committee with “reviewing] at least annually the investment policy,” and “the actions and performance” of the Investment Committee; making recommendations to the Board regarding the membership of the Investment Committee; “reporting] to the Board of Directors on the activities and findings of the Committee” and “makfing] recommendations to the Board based on these findings.” Exh. D to Def.’s Mem. Defendants argue that these advisory duties did not constitute discretion over Plan assets or administration sufficient to trigger ERISA fiduciary status, and that any allegations of more extensive powers are merely unsupported, conclusory allegations. In opposition, Kling notes that all of the Pension Committee members were members of the Harnischfeger Board of Directors, with the power to appoint and remove members of the Investment Committee as well as to select the Trustee. These powers, Kling argues, implicate discretionary authority over the management or administration of a plan and create a fiduciary duty as to those functions. See Batchelor v. Oak Hill Med. Group, 870 F.2d 1446, 1449 (9th Cir.1989); Enron, 284 F.Supp.2d at 522. Kling further argues that implicit in the power to appoint and remove fiduciaries is the duty to monitor their investment of plan assets. See Mehling v. New York Life Ins. Co., 163 F.Supp.2d 502, 510 (E.D.Pa.2001); Liss v. Smith, 991 F.Supp. 278, 311 (S.D.N.Y.1998); Enron, 284 F.Supp.2d at 553; In re Sears, Roebuck & Co. ERISA Litig., 2004 WL 407007, *8 (N.D.Ill. March 3, 2004); In re CMS Energy ERISA Litig., 312 F.Supp.2d 898, 916-17 (E.D.Mich.2004). Accordingly, Kling contends, an appointing fiduciary cannot avoid liability for others’ mismanagement by simply doing nothing. Free v. Briody, 732 F.2d 1331, 1335-6 (7th Cir.1984)." }, { "docid": "6036603", "title": "", "text": "recognize that in some instances, a person or entity is not an ERISA fiduciary. The mere fact that a defendant has some connection to or involvement in a pension plan does not confer. fiduciary status. For example, a defendant may fall outside the scope of § 1002(21)(A) if he or she lacks the requisite discretionary authority or responsibility with respect to a pension plan. See, e.g., Austin v. General Life Insurance Company, 498 F.Supp. 844, 846 (N.D.Ala.1980) (not every insurer is an ERISA fiduciary; fiduciary status turns upon the terms of the pension agreement); Boyer v. J.A. Majors Company Employees’ Profit Sharing Plan, 481 F.Supp. 454, 458 (N.D.Ga.1979) (corporate employer not an ERISA fiduciary when pension plan was managed and administered jointly by a separate committee and a trustee bank). Furthermore, a party may perform important and necessary functions, but will not be deemed a fiduciary because these acts are ministerial and not discretionary. E.g., Robbins v. First American Bank of Virginia, 514 F.Supp. 1183, 1190-91 (N.D.Ill.1981) (bank not a fiduciary when it acted as a servicing agent and was never involved in either the administration or management of the fund or its investment decisions). Interpretative regulations issued by the Department of Labor have further qualified the definition of “fiduciary.” 29 C.F.R. § 2509.75-8 (1985). These regulations make clear that a person who performs purely ministerial functions for an employee benefit plan within a framework of policies, interpretations, rules, practices, and procedures is not a fiduciary. III. Turning to the facts of this case, the Court concludes that defendants are not fiduciaries under the AICPA Plan. First, defendants do not render any investment advice, either for a fee or otherwise, and have no control over the assets of the Plan, which, as the Plan makes clear, never revert to the employer. At best, an employer sends contributions to MONY as an agent of the participant. 29 U.S.C. § 1002(21)(A)(ii). Second, defendants have no discretionary role in the administration of the AICPA Plan. By the terms of the Plan the employer has almost no discretion in the Plan’s administration. The Plan" }, { "docid": "2774716", "title": "", "text": "2509.75-5 (1991) (persons performing the ministerial duty of preparing reports required by government agencies are not fiduciaries). Regardless, the record is devoid of facts indicating that any erroneous entry on the form — even if Sun Bank’s underlying overvaluation of the stock in some way harmed the Plan — can be causally linked to any damages suffered by the Plan. \"[A] causal connection is required between the breach of fiduciary duty and the losses incurred by the plan.” Brandt, 687 F.2d at 898. . In accordance with legislative history, we do not reject absolutely the proposition that consultants and advisors can, under some circumstances, assume fiduciary control. While the ordinary functions of consultants and advisors to employee benefit plans (other than investment advisers) may not be considered as fiduciary functions, it must be recognized that there will be situations where such consultants and advisers may because of their special expertise, in effect, be exercising discretionary authority or control with respect to the management or administration of such plan or some authority or control regarding its assets. H.R.Conf.Rep. No. 1280, 93rd Cong., 2d Sess. 32B, reprinted in 1974 U.S.C.C.A.N. 4639, 5038, 5103. Inquiring into the de facto control of a stock broker over an ERISA plan, the district court in Stanton v. Shearson Lehman/American Express, Inc., 631 F.Supp. 100 (N.D.Ga.1986) similarly suggested that the dominant expertise of the consultant may be relevant: Even though a client may have the final word on how his or her assets will be traded and is, thus, technically in control of the assets, it is the stock broker who is effectively and realistically in control of the assets when, for whatever reason, the client merely \"rubber stamps\" — follows automatically or without consideration — the investment recommendations of the broker. Id. at 103 (emphasis in original). This passage may somewhat overstate the principle sought to be adopted by the district court. It is significant, though, that the Stanton court was construing a regulation pertaining to stock brokers; that regulation is formulated so as to readily confer fiduciary status when the broker goes beyond acting on" }, { "docid": "20640165", "title": "", "text": "pertinent part: 1. Trustee Responsibility. The Trustee shall hold the assets of and collect the income and make payments from the Master Trust, all as hereinafter provided.' Subject to the conditions and limitations set forth herein, the Trustee shall be responsible for the property received by it as Trustee, but shall not be respon sible for the administration of any Plan or for those assets of the Plans which have not been delivered to and accepted by the Trustee ... The Trustee shall not be responsible for the investment or reinvestment of the assets of the Master Trust, which investment and reinvestment shall be the responsibility of the investment manager as delegated by the Administrator, as provided in Section 4 hereof, and if not so delegated, of the Administrator. See App. Ex. 4 at 2 § 1. Finally, Section 4.E. of the Service Agreement reads: E. PLAN ASSETS Putnam has no obligation to monitor, control or in any way exercise any powers or discretion in the handling or disposition of any Plan assets, including the disposition of any funds, securities or other assets under the Plan ... Trustee responsibilities are specified in the Trust. The Employer specifically intends that Putnam have no discretionary authority to determine the investment of the Trust assets. See App. Ex. 5 § 4.E., App. Ex. 6 § 4.E. 2. Whether Plaintiffs Sufficiently Allege Defendants’ Fiduciary Status Plaintiffs can only establish that the Defendants breached fiduciary duties of loyalty and prudence if they first establish that each of the Defendants functioned as “fiduciaries” with respect to each of the Plaintiffs’ various allegations. See 29 U.S.C. § 1002(21)(A) (defining “functional fiduciary”). Defendants argue, however, that because none of the conduct on which Plaintiffs base their Complaint was carried out by Defendants in their performance of a fiduciary function, they cannot be held liable under ERISA. See Certain Defs.’ Motion to Dismiss at 33. Defendants, relying on the foregoing Plan Documents, argue that because “fiduciary status is not an all-or-nothing proposition under ERISA,” where Defendant Cardinal, the Committee Defendants, and the Director Defendants exercised no discretion in selecting," }, { "docid": "9596015", "title": "", "text": "facto fiduciary is a fiduciary to the extent that he or she “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.” ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A). Defendants contend that the Count I Defendants, Bear Stearns and the ESOP Committee, are not fiduciaries with respect to the Plan’s investment in Bear Stearns stock and had no discretionary authority or responsibility to liquidate the Plan’s holdings of that stock. ERISA Defs’. Mem. at 19. The ERISA Plaintiffs do not allege that they paid inflated prices for their shares or that the initial purchase of Bear Stearns stock was imprudent, as their Plan shares were purchased before the Class Period. They seek holder damages, as opposed to purchaser damages, under the “make whole” theory of damages provided for under ERISA § 409(a), 29 U.S.C. § 1109(a) and allege that they are entitled to recover the Plan’s losses suffered as a result of the Plan’s continued imprudent investment in Bear Stearns stock, plus the return on investment that would have been earned had the assets been prudently invested. Thus, the question at issue is whether Defendants are liable for the retention of Bear Stearns stock. ERISA Pl. Mem. at 40, citing Donovan v. Bierwirth, 754 F.2d 1049, 1056 (2d Cir.1985). 1. The Plan Agreement Does Not Establish a Duty to Divest the Plan of Bear Steams Stock The Plan documents are appropriate for consideration on a Rule 12(b)(6) motion as those documents are “integral to the complaint and are specifically referenced in that pleading.” In re Avon Products Securities Litigation, 2009 WL 848083, at *7, n. 12 (S.D.N.Y. Mar.3, 2009); see also Levy v. Southbrook Int’l Invs., Ltd., 263 F.3d 10, 13, n. 3 (2d Cir.2001). Article VI of The Bear Stearns Companies Inc. Employee Stock Ownership Plan (as amended and restated effective as of January 1, 2007) (“2007 Plan Agreement” or “Plan Agreement”) addresses “Diversification of Investments.” This article lays out" }, { "docid": "20640166", "title": "", "text": "disposition of any funds, securities or other assets under the Plan ... Trustee responsibilities are specified in the Trust. The Employer specifically intends that Putnam have no discretionary authority to determine the investment of the Trust assets. See App. Ex. 5 § 4.E., App. Ex. 6 § 4.E. 2. Whether Plaintiffs Sufficiently Allege Defendants’ Fiduciary Status Plaintiffs can only establish that the Defendants breached fiduciary duties of loyalty and prudence if they first establish that each of the Defendants functioned as “fiduciaries” with respect to each of the Plaintiffs’ various allegations. See 29 U.S.C. § 1002(21)(A) (defining “functional fiduciary”). Defendants argue, however, that because none of the conduct on which Plaintiffs base their Complaint was carried out by Defendants in their performance of a fiduciary function, they cannot be held liable under ERISA. See Certain Defs.’ Motion to Dismiss at 33. Defendants, relying on the foregoing Plan Documents, argue that because “fiduciary status is not an all-or-nothing proposition under ERISA,” where Defendant Cardinal, the Committee Defendants, and the Director Defendants exercised no discretion in selecting, communicating about, or monitoring the Plan assets, they were not Plan fiduciaries, and, therefore, are not liable. Id. Further, looking beyond the Plan Documents, Defendants argue that precedent establishes that “when an ERISA plan names a corporation as a fiduciary, the officers who exercise discretion on behalf of that corporation are not fiduciaries within the meaning of [ERISA] section 3(21)(A)(iii), unless it can be shown that these officers have individual discretionary roles as to the plan administration.” See id. (citing Confer, 952 F.2d at 37 (emphasis in original)); Croivley, 234 F.Supp.2d at 229 (dismissing complaint where directors exercised no discretion in selecting investment options, communicating with plan participants, or managing plan assets). Guided by its decision in AEP and ERISA’s liberal definition of “fiduciary,” at this stage of the litigation, this Court declines to address Defendants’ arguments that they are not fiduciaries. In AEP, this Court, faced with similar facts and an identical argument by defendants refused to dismiss that case. See 327 F.Supp.2d 812. There, the plaintiffs, plan participants, sued defendants AEP, AEPSC (an" }, { "docid": "15922325", "title": "", "text": "under ERISA. 1. Fiduciary Status Under ERISA Under ERISA § 402(a), 29 U.S.C. § 102(a), every employee benefit plan must appoint “one or more named fiduciaries who jointly or severally shall have authority to control and manage the operation and administration of the plan.” In addition to these so-called “named fiduciaries,” individuals may acquire fiduciary status if they exercise the fiduciary functions set forth in ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A). Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (“ERISA .defines ‘fiduciary’ not in terms of formal trusteeship, but in functional terms of control and authority over the plan .... ”); see 29 C.F.R. §§ 2509.75-8, 2510.3-21 (describing various functions that do or do not create fiduciary status). Section 3(21)(A) of ERISA, 29 U.S.C. § 1002(21)(A), defines a person as a fiduciary of an ERISA plan to the extent that he: (i) [E]xercises any discretionary authority or discretionary control respecting manágement of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. (emphasis added). The definition, thus, encompasses a variety of duties commonly performed by fiduciaries, including the providing of investment advice, administrative control over a plan, advising on whom to retain as legal'or investment advisors to a plan, and, ultimately, how to invest plan assets. Once deemed a fiduciary, either by express designation in the plan documents or the assumption of fiduciary obligations (the functional or de facto method), the fiduciary becomes subject to ERISA’s statutory duties. These duties, as summarized by the Supreme Court, “relate to the proper management, administration, and investment of fund assets, the maintenance of proper records, the disclosure of specified information, and the avoidance of conflicts of interest.” Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 142-43, 105 S.Ct." }, { "docid": "9184958", "title": "", "text": "or entity 'acting in its corporate capacity.' Only the former triggers fiduciary status; the latter does not.\" (internal citation omitted) ). The central question is \"whether that person 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. Plaintiffs claim that defendants were acting as fiduciaries when charging excessive premiums based on the functions described in subparagraph (i)-exercising discretion over plan management and exercising authority over plan assets. These provisions are distinct and therefore must be analyzed separately. See IT Corp. v. Gen. Am. Life Ins. Co. , 107 F.3d 1415, 1421 (9th Cir. 1997). 1. Discretion over Plan Management Plaintiffs first argue that, in secretly charging excessive premiums, defendants \"exercise[d] ... discretionary authority or discretionary control respecting [plan] management.\" 29 U.S.C. § 1002(21)(A)(i). We disagree. Insurance companies do not normally exercise discretion over plan management when they negotiate at arm's length to set rates or collect premiums. That is because these negotiations occur before the agreement is executed, at which point the insurer has no relationship to the plan and thus no discretion over its management. We addressed a similar issue in Santomenno , holding that a service provider-i.e., a company that managed a self-funded ERISA plan as a third-party administrator-\"is not an ERISA fiduciary when negotiating its compensation with a prospective customer.\" 883 F.3d at 837. The service provider in that case performed several functions for retirement plans, including the selection of various potential investments, and its compensation was set as a fixed percentage of the assets managed. Id. at 835-36. We explained that \"[a] service provider is plainly not involved in plan management when negotiating its prospective fees\"; to the contrary, \"at that stage 'discretionary control over plan management lies with the trustee, who decides whether to agree to the service provider's terms.' \" Id. at 838 (internal alterations omitted) (quoting Santomenno ex rel. John Hancock Tr. v. John Hancock Life Ins. Co. (U.S.A.) , 768 F.3d 284, 293 (3d Cir. 2014) (\" John Hancock \") ). In other" } ]

[ { "docid": "11503062", "title": "", "text": "It is significant to note that the Interstate case relied upon by the Debtor was a decision based on provisions of the former Bankruptcy Act, with the Sixth Circuit construing provisions of § 17(a)(4) of the Act, rather than construing provisions of § 523(a)(4) of the current Bankruptcy Code which repealed § 17(a). It is also of significance to note that the Sixth Circuit cited to Black’s Law Dictionary (5th Ed.1979) to provide it with a working definition for the term “defalcation”. Therein, the Sixth Circuit noted: “Defalcation” is defined as encompassing embezzlement, the misappropriation of trust funds held in any fiduciary capacity and the failure to properly account for such funds. Interstate, at 125. The more recent edition of Black’s Law Dictionary (6th Ed.1990) defines “defalcation” as follows: The act of a defaulter, act of embezzling; failure to meet an obligation; misappropriation of trust funds or money held in any fiduciary capacity; failure to properly account for such funds. Commonly spoken of officers of corporations or public officials. For purposes of Bankruptcy Code section making nondischargeable a debt resulting from fraud or defalcation by debtor while acting in fiduciary capacity, is failure to meet an obligation, misappropriation of trust funds or money held in any fiduciary capacity, and failure to properly account for such funds. In re Anderson, Bankr.N.D.Ill., 64 B.R. 331, 334. [Black’s Law Dictionary (6th Ed.1990) ] (Emphasis added.) The Debtor’s contention that the funds transferred by REA to Fostoria during the Gage transaction were fully accounted for is not dispositive. As stated above, the definition of “defalcation” is more expansive than an accounting of funds. It includes a failure to meet an obligation which is what occurred here. It is stipulated that the Debtor breached both his.fiduciary obligation and the contract with his client. Other instances in which the Debtor failed to meet his obligations may be found in the Canons Of Professional Ethics For Attorneys. Specifically, Canon 5 addresses several activities of proscribed conduct which show that the Debtor failed to meet his fiduciary obligations. Disciplinary Rule 5-101 requires a lawyer to refuse employment when" } ]

[ { "docid": "21450179", "title": "", "text": "individual debtor from any debt ... for fraud or defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4). A “defalcation” encompasses not only embezzlement and misappropriation by a fiduciary, but also the “failure to properly account for such funds.” Capitol Indemnity Corp. v. Interstate Agency, Inc. (In re Interstate Agency), 760 F.2d 121, 125 (6th Cir.1985) (internal quotations omitted). A debt is nondischargeable as a defalcation when the preponderance of the evidence establishes: “(1) a preexisting fiduciary relationship; (2) breach of that fiduciary relationship; and (3) a resulting loss.” In re Blaszak, 397 F.3d at 390. The Sixth Circuit \"construes the term ‘fiduciary capacity’ found in the defalcation provision of § 523(a)(4) more narrowly than the term is used in other circumstances.” In re Blaszak, 397 F.3d at 391. In Carlisle Cashway, Inc. v. Johnson (In re Johnson), 691 F.2d 249, 251-52 (6th Cir.1982), and In re Interstate Agency, 760 F.2d at 125, we limited the application of the defalcation provision to express or technical trusts and refused to extend it to constructive or implied trusts imposed by operation of law as a matter of equity. The decisions in those eases relied on the Supreme Court’s holding in Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 153, 79 L.Ed. 393 (1934), that the defalcation provision applies only to express or technical trusts. Again in In re Garver, we adopted a narrow definition of the defalcation provision and held that it does not apply to someone who merely fails to meet an obligation under a common law fiduciary relationship. In re Garver, 116 F.3d at 179 (“The attorney-client relationship, without more, is insufficient to establish the necessary fiduciary relationship for defalcation under § 523(a)(4),”). Accordingly, the defalcation provision ap plies to “only those situations involving an express or technical trust relationship arising from placement of a specific res in the hands of the debtor.” In re Garver, 116 F.3d at 180. To establish the existence of an express or technical trust, a creditor must demonstrate: “(1) an intent to create a trust; (2) a trustee;" }, { "docid": "4275022", "title": "", "text": "Code provides that “a discharge under [the Bankruptcy Code] does not discharge an individual debtor from any debt ... for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” 11 U.S.C. § 523(a)(4). Commonwealth contends that the debt is nondischargeable in bankruptcy because of defalcation by Blaszak. This Circuit has defined “defalcation” to encompass embezzlement and misappropriation by a fiduciary, as well as the “failure to properly account for such funds.” Capitol Indemnity Corp. v. Interstate Agency, Inc. (In re Interstate Agency), 760 F.2d 121, 125 (6th Cir.1985) (internal quotations omitted); see also Kriegish v. Lipan (In re Kriegish), No. 02-1610, 2004 WL 346041, *2-6 (6th Cir. Feb. 23, 2004). In order to find a debt nondischargeable under § 523(a)(4) due to defalcation, we require proof by a preponderance of the evidence of the following: (1) a pre-exist-ing fiduciary relationship; (2) breach of that fiduciary relationship; and (3) a resulting loss. R.E. America, Inc. v. Garver (In re Garver), 116 F.3d 176, 178-79 (6th Cir.1997). We first turn to whether a fiduciary relationship existed between Blaszak and Commonwealth before the alleged defalcation. We have previously decided that the term “fiduciary relationship,” for purposes of § 523(a)(4), is determined by federal, not state, law. Carlisle Cashway, Inc. v. Johnson (In re Johnson), 691 F.2d 249, 251 (6th Cir.1982) (“The question of who is a fiduciary for purposes of section 17(a)(4) [the predecessor section to § 523(a)(4) ] is one of federal law, although state law is important in determining when a trust relationship exists.”). Under Carlisle Cashway, therefore, Commonwealth must prove that a trust relationship existed between Blaszak and Commonwealth that would make Blaszak a fiduciary for the purposes of § 523(a)(4). This Court construes the term “fiduciary capacity” found in the defalcation provision of § 523(a)(4) more narrowly than the term is used in other circumstances. For example, in In re Garver, we explicitly considered “the nature of the fiduciary relationship required under the defalcation provision of § 523(a)(4),” and held that § 523(a)(4) applied to trustees who misappropriate funds held in trust, and not to those" }, { "docid": "6628062", "title": "", "text": "title does not discharge an individual debtor from any debt — (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny. 11 U.S.C. § 523(a)(4). The Court of Appeals for the Sixth Circuit has held that, “The attorney-client relationship, without more, is insufficient to establish the necessary fiduciary relationship for defalcation under § 523(a)(4). Instead, the debtor must hold funds in trust for a third party to satisfy the fiduciary relationship element of the defalcation provision of § 523(a)(4).” R.E. America, Inc. v. Garver (In re Garver), 116 F.3d 176, 179 (6th Cir.1997); see also Capitol Indem. Corp. v. Interstate Agency, Inc. (In re Interstate Agency), 760 F.2d 121 (6th Cir.1985) (decided under Bankruptcy Act § 17(a)(4), the predecessor to § 523(a)(4)). In footnote 6 of the opinion, the Garver court cited with favor Freeman v. Frick (In re Frick), 207 B.R. 731 (Bankr.N.D.Fla.1997), which concluded that “to extend the scope of Section 523(a)(4) generally to acts of malpractice or unethical conduct of professionals goes well beyond the longstanding precedents of courts in this circuit and the U.S. Supreme Court.” Frick, 207 B.R. at 738. The Garver court went on to note that “[w]hile attorneys should perhaps be held to a higher standard than other professionals, that is a decision for Congress, not the federal courts, to make.” Garver, 116 F.3d at n. 6. Plaintiffs urge the Court to consider the position of the minority of courts that have held that fraud within the attorney-client fiduciary relationship is sufficient to trigger the exception to discharge found in § 523(a)(4). See, e.g., Tudor Oaks Ltd. Partnership v. Cochrane (In re Cochrane), 179 B.R. 628, 634 (Bankr.D.Minn.1995); Tai v. Charfoos (Matter of Charfoos), 183 B.R. 131, 136-38 (Bankr.E.D.Mich.1994). These decisions were considered by the court in Garver and rejected. This court is not persuaded that the reach of § 523(a)(4) should be expanded to include legal malpractice claims, and in any event, is bound by the decision in Garver. The defendant is entitled to have judgment entered in his favor pursuant to § 523(a)(4). D. Finally, Plaintiffs contend" }, { "docid": "4275025", "title": "", "text": "is well established that the defalcation provision of § 523(a)(4) applies to express or technical trusts, but not to constructive trusts that courts may impose as an equitable remedy. Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 79 L.Ed. 393 (1934). The Davis Court explained that “ ‘[t]he language would seem to apply only to a debt created by a person who was already a fiduciary when the debt was created.’ ” Id. (quoting Upshur v. Briscoe, 138 U.S. 365, 378, 11 S.Ct. 313, 34 L.Ed. 931 (1891)); accord Peoples Bank & Trust Co. v. Penick (In re Penick), No. 97-5446, 1998 WL 344039, *2 (6th Cir. May 28, 1998). Again, we look to In re Garver, where the debtor, Garver, had been the attorney of the creditor, R.E. America, Inc. We held that “[t]he attorney-client relationship, without more, is insufficient to establish the necessary fiduciary relationship for defalcation under § 523(a)(4). Instead the debtor must hold funds in trust for a third party to satisfy the fiduciary relationship element of the defalcation provision of § 523(a)(4).” 116 F.3d at 179. Under this construction of § 523(a)(4), “[t]he mere failure to meet an obligation while acting in a fiduciary capacity does not rise to the level of defalcation; an express or technical trust must also be present.” Id. The court reemphasized this requirement: “In sum, ... the defalcation provision of § 523(a)(4) is limited to only those situations involving an express or technical trust relationship arising from placement of a specific res in the hands of the debtor.” Id. at 180. Four requirements are necessary to establish the existence of an express or technical trust: (1) an intent to create a trust; (2) a trustee; (3) a trust res; and (4) a definite beneficiary. Graffice v. Grim (In re Grim), 293 B.R. 156, 166 (Bankr.N.D.Ohio 2003). All four elements of a technical or express trust clearly exist here, as demonstrated by the terms of the agency agreement between Consumers and Commonwealth. The agency agreement demonstrates the pre-incorporation intent to create a trust: The term of the" }, { "docid": "4275023", "title": "", "text": "relationship existed between Blaszak and Commonwealth before the alleged defalcation. We have previously decided that the term “fiduciary relationship,” for purposes of § 523(a)(4), is determined by federal, not state, law. Carlisle Cashway, Inc. v. Johnson (In re Johnson), 691 F.2d 249, 251 (6th Cir.1982) (“The question of who is a fiduciary for purposes of section 17(a)(4) [the predecessor section to § 523(a)(4) ] is one of federal law, although state law is important in determining when a trust relationship exists.”). Under Carlisle Cashway, therefore, Commonwealth must prove that a trust relationship existed between Blaszak and Commonwealth that would make Blaszak a fiduciary for the purposes of § 523(a)(4). This Court construes the term “fiduciary capacity” found in the defalcation provision of § 523(a)(4) more narrowly than the term is used in other circumstances. For example, in In re Garver, we explicitly considered “the nature of the fiduciary relationship required under the defalcation provision of § 523(a)(4),” and held that § 523(a)(4) applied to trustees who misappropriate funds held in trust, and not to those who fail to meet an obligation under a common law fiduciary relationship. In In re Interstate Agency, a case similar to the facts of this case, and the case on which the Bankruptcy Appellate Panel primarily relied in its ruling, we defined defalcation as “encompassing embezzlement, the ‘misappropriation of trust funds held in any fiduciary capacity,’ and the ‘failure to properly account for such funds.’ ” 760 F.2d at 125 (quoting Black’s Law Dictionary, 375 (5th ed.1979)). Although an ordinary agency-principal relationship can involve fiduciary duties, In re Interstate holds that an agent-principal relationship standing alone is insufficient to establish the type of fiduciary duty contemplated by § 523. In addition, to satisfy § 523(a)(4) in the context of a defalcation, the debtor must hold funds in trust for a third party to satisfy the fiduciary relationship element of the defalcation provision of § 523(a)(4). Which leads us to the second requirement: that the fiduciary relationship turn on the existence of a pre-existing express or technical trust whose res encompasses the property at issue. It" }, { "docid": "15442096", "title": "", "text": "Adding prejudgment interest, the state court ordered Garver to pay $815,178 to REA. . Although Interstate Agency defined defalcation under § 17(a)(4) of the old Bankruptcy Act, the precursor to § 523(a)(4), neither party argues, and we conclude, that this distinction is irrelevant to our analysis. . Garver argues that the definition of defalcation contained in the Sixth Edition of Black’s Law Dictionary expands the concept of defalcation to an untenable level because any debt resulting from an attorney’s failure to meet a fiduciary obligation would automatically become nondis-chargeable under the Bankruptcy Code. In light of our holding today, Garver's fear is unwarranted. Because the attorney-client relationship by itself is insufficient to create the necessary fiduciary relationship for purposes of the defalcation provision of § 523(a)(4), an attorney’s breach of fiduciary duty, without more, does not constitute defalcation. Absent an express or technical trust, an attorney’s legal malpractice, like all other types of professional malpractice, remains dischargeable under the Code. See Freeman v. Frick (In re Frick), 207 B.R. 731, 738 (Bankr. N.D.Fla.1997) (“[T]o extend the scope of Section 523(a)(4) generally to acts of malpractice or unethical conduct of professionals goes well beyond the longstanding precedents of courts in this circuit and the U.S. Supreme Court.”). While attorneys should perhaps be held to a higher standard than other professionals, that is a decision for Congress, not the federal courts, to make." }, { "docid": "21450178", "title": "", "text": "ERISA’s broad definition of that term is not enough. The district court found no evidence that Bucci acted as a fiduciary of the contributions and affirmed the bankruptcy court’s decision. The Funds now appeal the decision of the district court. For the reasons stated below, we affirm. II. On appeal of a district court's irii-tial appellate review of a bankruptcy court’s decision, “this court independently reviews the bankruptcy court’s findings of fact for clear error and its conclusions of law de novo.” R.E. America, Inc. v. Garver (In re Garver), 116 F.3d 176, 178 (6th Cir.1997). Debtor Charles S. Bucci concedes that he should be treated as his company’s alter ego and that he failed to make the monthly employer contributions the CBA required him to make. The primary issue on appeal is whether Bucci’s debt from failing to remit the employer contributions is excluded from discharge as a defalcation while acting in a fiduciary capacity. Also at issue is whether Bucci’s debt is nondischargeable as an embezzlement. The Bankruptcy Code \"does not discharge an individual debtor from any debt ... for fraud or defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4). A “defalcation” encompasses not only embezzlement and misappropriation by a fiduciary, but also the “failure to properly account for such funds.” Capitol Indemnity Corp. v. Interstate Agency, Inc. (In re Interstate Agency), 760 F.2d 121, 125 (6th Cir.1985) (internal quotations omitted). A debt is nondischargeable as a defalcation when the preponderance of the evidence establishes: “(1) a preexisting fiduciary relationship; (2) breach of that fiduciary relationship; and (3) a resulting loss.” In re Blaszak, 397 F.3d at 390. The Sixth Circuit \"construes the term ‘fiduciary capacity’ found in the defalcation provision of § 523(a)(4) more narrowly than the term is used in other circumstances.” In re Blaszak, 397 F.3d at 391. In Carlisle Cashway, Inc. v. Johnson (In re Johnson), 691 F.2d 249, 251-52 (6th Cir.1982), and In re Interstate Agency, 760 F.2d at 125, we limited the application of the defalcation provision to express or technical trusts and refused to extend it to constructive" }, { "docid": "12616507", "title": "", "text": "fiduciary relationship concerning the insurance proceeds. Like Gabel, there is no proof in the record that the Plaintiff even knew of the insurance proceeds until after they were received by the Defendant. The Sixth Circuit, elaborating upon the express trust requirement set forth in Interstate Agency, has stated that “§ 523(a)(4) is limited to only those situations involving an express or technical trust relationship arising from placement of a specific res in the hands of the debt- or.” R.E. America, Inc. v. Garver (In re Garver), 116 F.3d 176, 180 (6th Cir.1997) (emphasis added); see also Magisano, 228 B.R. at 191 (“The existence of an express trust requires a clearly defined trust res, an unambiguous trust relationship, and specific, affirmative duties undertaken by a trustee.”). In this proceeding, similar to Gabel, there is no proof that the Plaintiff placed her corporate share of the insurance proceeds in the hands of the Defendant under an express agreement that he deal with the same for the benefit of the Plaintiff. Absent such an express trust, an action for fraud or defalcation does not arise under § 523(a)(4) even if there otherwise exists a fiduciary relationship between the parties that is recognized by state law. Garver, 116 F.3d at 178 (noting that the Sixth Circuit follows those courts that hold to a narrow construction of the term “fiduciary capacity” under § 523(a)(4) that does not necessarily include all fiduciary relationships recognized under state law). B. Embezzlement OR LaRceny Although the Plaintiff limited her Complaint and post-trial brief to the issue of fraud or defalcation while acting in a fiduciary capacity, embezzlement and larceny are also grounds for nondischarge-ability pursuant to § 523(a)(4). Embezzlement and larceny, unlike fraud and defalcation, do not require the existence of a fiduciary relationship. See Magisano, 228 B.R. at 190. Embezzlement, for purposes of § 523(a)(4), is “ ‘the fraudulent appropriation of property by a person to whom such property has been entrusted or into whose hands it has lawfully come.’ ” Brady v. McAllister (In re Brady), 101 F.3d 1165, 1172-73 (6th Cir.1996) (quoting Gribble v. Carlton (In" }, { "docid": "15442092", "title": "", "text": "Interstate Agency), 760 F.2d 121 (6th Cir.1985), in siding with those courts which adopt the narrow interpretation of the term. In Interstate Agency, we defined defalcation as “encompassing embezzlement, the ‘misappropriation of trust funds held in any fiduciary capacity,’ and the ‘failure to properly account for such funds.’ ” Id. at 125 (quoting Black’s Law Dictionary, 375 (5th ed.1979)) (emphasis added). We believe that this definition, which focuses upon the embezzlement, misappropriation, or failure to properly account for “trust funds”, necessarily implies the existence of an express or technical trust relationship. See Highland v. Hix (In re Hix), 161 B.R. 401, 404 (Bankr.N.D.Ohio 1993) (citing Interstate Agency, 760 F.2d 121, to hold that plaintiff must prove an express trust status to establish the nondisehargeability of a debt under § 523(a)(4)). The attorney-client relationship, without more, is insufficient to establish the necessary fiduciary relationship for defalcation under § 523(a)(4). Instead, the debtor must hold funds in trust for a third party to satisfy the fiduciary relationship element of the defalcation provision of § 523(a)(4). In this case, despite the absence of an express trust, the parties stipulated to the existence of a fiduciary relationship satisfying the defalcation provision of § 523(a)(4). In re Garver, 180 B.R. 181, 186 (Bankr. N.D.Ohio 1995). The only remaining question was whether the debt that Garver owed REA was the result of defalcation. In holding that Garver’s debt to REA was the result of defalcation, the bankruptcy court referenced the Sixth Edition of Black’s Law Dictionary, which broadly defines defalcation as, inter alia, “failure to meet an obligation” while acting in a fiduciary capacity. Garver, 180 B.R. at 184 (quoting Black’s Law Dictionary (6th Ed.1990)). We find that the bankruptcy court erred in relying upon this dictionary definition of defalcation because the dictionary definition improperly expands upon our previous definition of the term contained in Interstate Agency. As noted above, Interstate Agency defined defalcation as the embezzlement, misappropriation of trust funds held in a fiduciary capacity, and failure to properly account for trust funds. Interstate Agency, 760 F.2d at 125. This definition did not include the" }, { "docid": "11503067", "title": "", "text": "express or technical trust does not apply to situations which are nothing more than debtor-creditor relationships. In re Gans, 75 B.R. 474 (Bankr.S.D.N.Y.1987); Matter of Harasymiw, 97 B.R. 924 (N.D.Ill.1989), aff'd 895 F.2d 1170 (7th Cir.1990) (contractual relationship from a loan transaction is insufficient to create a trust); In re Short, 818 F.2d 693 (9th Cir.1987) (ordinary, commercial relationships are excluded from reach of § 523(a)(4)). Certain relationships, however, will usually result in the finding of a trust. An attorney can expect a trust to exist in favor of a client even in the absence of an express agreement. See, Kwait v. Doucette, 81 B.R. 184 (D.Mass.1987); F.D.I.C. v. Mmahat, 907 F.2d 546 (5th Cir.1990), cert. denied 499 U.S. 936, 111 S.Ct. 1387, 113 L.Ed.2d 444 (1991) (actions by debtor savings and loan’s general counsel urging corporation to make improper loans so he could earn fees was defalcation while in a fiduciary relationship.); Interstate, supra, (Sixth Circuit found a fiduciary relationship existed between an insurance agent and insurance company for premiums collected). In the matter at bar, a special relationship existed between the Debtor and REA, namely, attorney-client. Moreover, the parties have stipulated to the existence of a fiduciary relationship which satisfies the first of the two-pronged test under § 523(a)(4). That is, an express or technical trust exists in favor of REA The only remaining element is whether a defalcation occurred while the fiduciary relationship existed. Referring, again, to the definition of defalcation quoted above, the definition is inclusive of a “failure to meet an obligation”. Moreover, the definition clearly provides that “For purposes of Bankruptcy Code section making nondischargeable a debt resulting from fraud or defalcation by the debtor while acting in a fiduciary capacity is failure to meet an obligation ... ”. In this regard, the record not only shows a stipulated fiduciary relationship between the-parties, it also contains stipulations which reflect that the Debt- or breached certain of his duties arising under the attorney-client relationship, in addition to the Debtor having breached the contract with his client (REA) on the Gage transaction. {See, Stipulations, filed March" }, { "docid": "15442095", "title": "", "text": "aspect of the defalcation provision of § 523(a)(4), we hold under the facts of this case that Garver did not commit defalcation. REA does not contend that Garver misappropriated or improperly accounted for its $600,000. To the contrary, the funds were merely lost because the venture turned out to be a poor investment. Because all funds in this case were properly accounted for, no defalcation occurred, and the debt is dis-chargeable under Chapter 7 of the Bankruptcy Code. Accordingly, the decision of the district court is REVERSED with directions to discharge the debt. . The bankruptcy court's opinion is published at 180 B.R. 181. . Although Garver disputes a portion of the following facts, both parties agree that given the state court jury decision in favor of REA these facts must be taken as true for purposes of this appeal. . REA sued on this promissory note and won, but did not recover any money because of Fosto-ria Braude's insolvency. From its inception, Fostoria Braude contained no assets other than the stock of Gage. . Adding prejudgment interest, the state court ordered Garver to pay $815,178 to REA. . Although Interstate Agency defined defalcation under § 17(a)(4) of the old Bankruptcy Act, the precursor to § 523(a)(4), neither party argues, and we conclude, that this distinction is irrelevant to our analysis. . Garver argues that the definition of defalcation contained in the Sixth Edition of Black’s Law Dictionary expands the concept of defalcation to an untenable level because any debt resulting from an attorney’s failure to meet a fiduciary obligation would automatically become nondis-chargeable under the Bankruptcy Code. In light of our holding today, Garver's fear is unwarranted. Because the attorney-client relationship by itself is insufficient to create the necessary fiduciary relationship for purposes of the defalcation provision of § 523(a)(4), an attorney’s breach of fiduciary duty, without more, does not constitute defalcation. Absent an express or technical trust, an attorney’s legal malpractice, like all other types of professional malpractice, remains dischargeable under the Code. See Freeman v. Frick (In re Frick), 207 B.R. 731, 738 (Bankr. N.D.Fla.1997) (“[T]o extend" }, { "docid": "3425484", "title": "", "text": "while acting in a fiduciary capacity need not rise to the level of fraud. See Patel v. Shamrock Floorcovering Servs., Inc. (In re Patel), 565 F.3d 963, 970 (6th Cir.2009); Schwager v. Fallas (In re Schwager), 121 F.3d 177, 185 (5th Cir.1997). The Sixth Circuit has defined defalcation to include a misappropriation of funds by a fiduciary, “so long as the use was not the result of mere negligence or a mistake of fact.” Patel, 565 F.3d at 970. “A debt is non-dischargeable as the result of defalcation when a preponderance of the evidence establishes: (1) a pre-existing fiduciary relationship, (2) a breach of that relationship, and (3) resulting loss.” Id. at 968. The Sixth Circuit has adopted a narrow interpretation of “fiduciary” as used in § 523(a)(4). R.E. America, Inc. v. Garver (In re Garver), 116 F.3d 176, 179 (6th Cir.1997). In order to trigger the defalcation provision in that statute, a debtor must hold funds in a trust for the benefit of a third party. Id. at 179. Furthermore, the types of trusts that will trigger the defalcation provision of § 523(a)(4) are “limited to only those situations involving an express or technical trust relationship arising from placement of a specific res in the hands of the debt- or.” Id. at 180. While the existence of a fiduciary relationship for purposes of § 523(a)(4) is determined by federal law, Commonwealth Land Title Co. v. Blaszak (In re Blaszak), 397 F.3d 386, 390 (6th Cir.2005), the determination of whether an express or technical trust exists is governed by state law, Chapman v. Pomainville (In re Pomainville), 254 B.R. 699, 702 (Bankr.S.D.Ohio 2000); see Capitol Indemnity. Corp. v. Interstate Agency, Inc. (In re Interstate Agency, Inc.), 760 F.2d 121, 124 (6th Cir.1985). Under Ohio law, “[a]n express trust is ‘a fiduciary relationship with respect to property, arising as a result of a manifestation of an intention to create it and subjecting the person in whom the title is vested to equitable duties to deal with it for the benefit of others.’ ” Gabel v. Richley, 101 Ohio App.3d 356, 362-63," }, { "docid": "11503061", "title": "", "text": "the acquisition of Gage, that court rendered its jury verdict finding that the Debtor committed legal malpractice and breached his agreement with REA to contribute a matching $600,000.00 toward the acquisition of Gage. The state court jury awarded REA $600,000.00 in damages. Upon further petition to that court, REA was awarded an additional $215,178.00 as prejudgment interest. On April 18, 1994, the Debtor filed his voluntary petition for relief under Chapter 7. The Debtor contends that no defalcation occurred in this matter. He argues that all funds contributed by REA to the Gage transaction were used in their intended fashion. In that regard, he further asserts that no funds were ever mishandled, unaccounted for, misaceounted, or diverted from Gage. Additionally, the Debtor argues that, notwithstanding the state court’s finding of legal malpractice against him, legal malpractice does not constitute a defalcation and that a breach of contract is not a defalcation. In support of these contentions, the Debtor relies upon the Sixth Circuit’s decision in In re Interstate Agency, Inc., 760 F.2d 121 (6th Cir.1985). It is significant to note that the Interstate case relied upon by the Debtor was a decision based on provisions of the former Bankruptcy Act, with the Sixth Circuit construing provisions of § 17(a)(4) of the Act, rather than construing provisions of § 523(a)(4) of the current Bankruptcy Code which repealed § 17(a). It is also of significance to note that the Sixth Circuit cited to Black’s Law Dictionary (5th Ed.1979) to provide it with a working definition for the term “defalcation”. Therein, the Sixth Circuit noted: “Defalcation” is defined as encompassing embezzlement, the misappropriation of trust funds held in any fiduciary capacity and the failure to properly account for such funds. Interstate, at 125. The more recent edition of Black’s Law Dictionary (6th Ed.1990) defines “defalcation” as follows: The act of a defaulter, act of embezzling; failure to meet an obligation; misappropriation of trust funds or money held in any fiduciary capacity; failure to properly account for such funds. Commonly spoken of officers of corporations or public officials. For purposes of Bankruptcy Code section" }, { "docid": "4275024", "title": "", "text": "who fail to meet an obligation under a common law fiduciary relationship. In In re Interstate Agency, a case similar to the facts of this case, and the case on which the Bankruptcy Appellate Panel primarily relied in its ruling, we defined defalcation as “encompassing embezzlement, the ‘misappropriation of trust funds held in any fiduciary capacity,’ and the ‘failure to properly account for such funds.’ ” 760 F.2d at 125 (quoting Black’s Law Dictionary, 375 (5th ed.1979)). Although an ordinary agency-principal relationship can involve fiduciary duties, In re Interstate holds that an agent-principal relationship standing alone is insufficient to establish the type of fiduciary duty contemplated by § 523. In addition, to satisfy § 523(a)(4) in the context of a defalcation, the debtor must hold funds in trust for a third party to satisfy the fiduciary relationship element of the defalcation provision of § 523(a)(4). Which leads us to the second requirement: that the fiduciary relationship turn on the existence of a pre-existing express or technical trust whose res encompasses the property at issue. It is well established that the defalcation provision of § 523(a)(4) applies to express or technical trusts, but not to constructive trusts that courts may impose as an equitable remedy. Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 79 L.Ed. 393 (1934). The Davis Court explained that “ ‘[t]he language would seem to apply only to a debt created by a person who was already a fiduciary when the debt was created.’ ” Id. (quoting Upshur v. Briscoe, 138 U.S. 365, 378, 11 S.Ct. 313, 34 L.Ed. 931 (1891)); accord Peoples Bank & Trust Co. v. Penick (In re Penick), No. 97-5446, 1998 WL 344039, *2 (6th Cir. May 28, 1998). Again, we look to In re Garver, where the debtor, Garver, had been the attorney of the creditor, R.E. America, Inc. We held that “[t]he attorney-client relationship, without more, is insufficient to establish the necessary fiduciary relationship for defalcation under § 523(a)(4). Instead the debtor must hold funds in trust for a third party to satisfy the fiduciary relationship element of" }, { "docid": "18534116", "title": "", "text": "she will provide will establish that all expenditures she made as guardian were in good faith and provided necessary food and shelter for her son. The arguments of the parties shall be considered below. To obtain a judgment of nondischarge-ability under § 523(a)(4) of the Bankruptcy Code the Sixth Circuit has held that the following must be proven: (1) an express trust status to the property at issue; (2) [the debtor] must have been acting in a fiduciary capacity; (3) [the debtor] must have breached this relationship by at least “defalcation” of funds. Capital Indemnity Corp. v. Interstate Agency, Inc. (In re Interstate Agency, Inc.), 760 F.2d 121, 124 (6th Cir.1985). The first two elements of the Interstate Agency court’s tripartite discharge-ability test do not appear to be disputed by the parties. As guardian of the estate of Corey Paul Chapman, Debtor held $37,500 in trust and certainly occupied the position of a fiduciary under Ohio law. See, Ohio Revised Code § 1339.03(B). The disposi-tive issue, then, is whether the Debtor is guilty of defalcation within the meaning of 11 U.S.C. § 523(a)(4). The Sixth Circuit in Interstate Agency articulated the following definition of “defalcation”: “ ‘Defalcation’ is defined as encompassing embezzlement, the ‘misappropriation of trust funds held in any fiduciary capacity’ and the ‘failure to properly account for such funds.’ ” 760 F.2d at 125 (quoting BLACK’S LAW DICTIONARY at 375 (5th ed. 1979)). It has long been held that to establish defalcation one need not prove intentional misconduct on the fiduciary’s part. Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510, 511-12 (2d Cir.1937) (interpreting the term defalcation against the backdrop of the Bankruptcy Acts of 1800,1841 and 1898). Following Judge Learned Hand’s decision in the seminal Central Hanover Bank case, the Sixth Circuit stated that “creating a debt by breáching a fiduciary duty is a sufficiently bad act to invoke the section 17(a)(4) exception [to discharge] even without a subjective mental state evidencing intent to breach a known fiduciary duty or bad faith in doing so.” Carlisle Cashway, Inc. v. Johnson (In re Johnson), 691" }, { "docid": "15442094", "title": "", "text": "broader language of “failure to meet an obligation” while acting in a fiduciary capacity. The mere failure to meet an obligation while acting in a fiduciary capacity simply does not rise to the level of defalcation; an express or technical trust must also be present. Although we recognize that Interstate Agency referred to the previous Fifth Edition of Black’s Law Dictionary for its definition of defalcation, Interstate Agency, 760 F.2d at 125, we decline to extend that definition to reflect the broader language contained in the more recent Sixth Edition of Black’s Law Dictionary. In sum, under Interstate Agency the defalcation provision of § 523(a)(4) is limited to only those situations involving an express or technical trust relationship arising from placement of a specific res in the hands of the debtor. See Fowler Bros., 91 F.3d at 1371. Defalcation then occurs through the misappropriation or failure to properly account for those trust funds. Interstate Agency, 760 F.2d at 125. Although Garver stipulated to the existence of a fiduciary relationship sufficient to satisfy the fiduciary relationship aspect of the defalcation provision of § 523(a)(4), we hold under the facts of this case that Garver did not commit defalcation. REA does not contend that Garver misappropriated or improperly accounted for its $600,000. To the contrary, the funds were merely lost because the venture turned out to be a poor investment. Because all funds in this case were properly accounted for, no defalcation occurred, and the debt is dis-chargeable under Chapter 7 of the Bankruptcy Code. Accordingly, the decision of the district court is REVERSED with directions to discharge the debt. . The bankruptcy court's opinion is published at 180 B.R. 181. . Although Garver disputes a portion of the following facts, both parties agree that given the state court jury decision in favor of REA these facts must be taken as true for purposes of this appeal. . REA sued on this promissory note and won, but did not recover any money because of Fosto-ria Braude's insolvency. From its inception, Fostoria Braude contained no assets other than the stock of Gage. ." }, { "docid": "3920161", "title": "", "text": "pertinent part, that a discharge in bankruptcy does not discharge an individual from any debt to the extent that such debt is obtained by “false pretenses, a false representation, or actual fraud.... ” Grogan v. Garner, 498 U.S. at 281, 111 S.Ct. 654. The Plaintiffs reserved their claim under § 523(a)(2)(A) in the event of a trial and stated that they “believe it will be unnecessary to address that claim for purposes of [the summary judgment] motion”. Thus, Plaintiffs’ motion for summary judgment is focused on §§ 523(a)(4) and (a)(6). Section 523(a)(4) provides, in pertinent part, that a debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny” is excepted from discharge. To prevail under the fraud or defalcation provision, the Plaintiffs must prove: 1) the existence of an express trust status to the property at issue; 2) the Defendant was acting in a fiduciary capacity; and 3) the alleged debt arose from the Defendant’s fraud or defalcation while acting in a fiduciary capacity. Capitol Indent. Corp. v. Interstate Agency, Inc. (In re Interstate Agency), 760 F.2d 121, 124 (6th Cir.1985). The Interstate Agency court defined defalcation as “encompassing embezzlement, the ‘misappropriation of trust funds held in any fiduciary capacity,’ and the ‘failure to properly account for such funds.’ ” Id. at 125. Black’s Law Dictionary defines defalcation as “embezzlement” and “Loosely, the failure to meet an obligation; a non-fraudulent default.” Black’s Law Dictionary 448 (8th ed.2004). Under Ohio law, an express trust is “a fiduciary relationship with respect to property, arising as a result of a manifestation with intention to create it and subjecting the person in whom the title is vested to equitable duties to deal with it for the benefit of others.” Gabel v. Richley, 101 Ohio App.3d 356, 362-63, 655 N.E.2d 773 (1995). (internal quotations omitted). In order to establish the existence of an express or technical trust under Ohio law, therefore, a Plaintiff must show: “1) an intent to create a trust; 2) a trustee; 3) a trust res; and 4) a definite beneficiary.” In re Blaszak, 397 F.3d 386, 391" }, { "docid": "15442091", "title": "", "text": "B.R. 628, 634 (Bankr.D.Minn.1995) (agreeing with those courts that hold an attorney’s professional duties of fidelity, good faith, and utmost fairness to a client sufficient to satisfy the fiduciary relationship element of § 523(a)(4)); Tai v. Charfoos (In re Charfoos), 183 B.R. 131, 136-38 (Bankr. E.D.Mich.1994) (holding that breach of an attorney’s duty of disclosure to a client in the context of self-dealing constitutes breach of fiduciary relationship for purposes of § 523(a)(4)). These courts generally do not require an express or technical trust to establish the fiduciary relationship element necessary for the defalcation provision of § 523(a)(4). Tudor Oaks, 179 B.R. at 634 (holding the deposit of a specific res with the attorney unnecessary for purposes of § 523(a)(4) because “the professional’s fiduciary duty of forbearance is not limited to situations involving segregated, entrusted assets”). Although this court has not yet explicitly identified the nature of the fiduciary relationship required under the defalcation provision of § 523(a)(4), we are guided by our previous decision in Capitol Indem. Corp. v. Interstate Agency, Inc. (In re Interstate Agency), 760 F.2d 121 (6th Cir.1985), in siding with those courts which adopt the narrow interpretation of the term. In Interstate Agency, we defined defalcation as “encompassing embezzlement, the ‘misappropriation of trust funds held in any fiduciary capacity,’ and the ‘failure to properly account for such funds.’ ” Id. at 125 (quoting Black’s Law Dictionary, 375 (5th ed.1979)) (emphasis added). We believe that this definition, which focuses upon the embezzlement, misappropriation, or failure to properly account for “trust funds”, necessarily implies the existence of an express or technical trust relationship. See Highland v. Hix (In re Hix), 161 B.R. 401, 404 (Bankr.N.D.Ohio 1993) (citing Interstate Agency, 760 F.2d 121, to hold that plaintiff must prove an express trust status to establish the nondisehargeability of a debt under § 523(a)(4)). The attorney-client relationship, without more, is insufficient to establish the necessary fiduciary relationship for defalcation under § 523(a)(4). Instead, the debtor must hold funds in trust for a third party to satisfy the fiduciary relationship element of the defalcation provision of § 523(a)(4). In this" }, { "docid": "15442093", "title": "", "text": "case, despite the absence of an express trust, the parties stipulated to the existence of a fiduciary relationship satisfying the defalcation provision of § 523(a)(4). In re Garver, 180 B.R. 181, 186 (Bankr. N.D.Ohio 1995). The only remaining question was whether the debt that Garver owed REA was the result of defalcation. In holding that Garver’s debt to REA was the result of defalcation, the bankruptcy court referenced the Sixth Edition of Black’s Law Dictionary, which broadly defines defalcation as, inter alia, “failure to meet an obligation” while acting in a fiduciary capacity. Garver, 180 B.R. at 184 (quoting Black’s Law Dictionary (6th Ed.1990)). We find that the bankruptcy court erred in relying upon this dictionary definition of defalcation because the dictionary definition improperly expands upon our previous definition of the term contained in Interstate Agency. As noted above, Interstate Agency defined defalcation as the embezzlement, misappropriation of trust funds held in a fiduciary capacity, and failure to properly account for trust funds. Interstate Agency, 760 F.2d at 125. This definition did not include the broader language of “failure to meet an obligation” while acting in a fiduciary capacity. The mere failure to meet an obligation while acting in a fiduciary capacity simply does not rise to the level of defalcation; an express or technical trust must also be present. Although we recognize that Interstate Agency referred to the previous Fifth Edition of Black’s Law Dictionary for its definition of defalcation, Interstate Agency, 760 F.2d at 125, we decline to extend that definition to reflect the broader language contained in the more recent Sixth Edition of Black’s Law Dictionary. In sum, under Interstate Agency the defalcation provision of § 523(a)(4) is limited to only those situations involving an express or technical trust relationship arising from placement of a specific res in the hands of the debtor. See Fowler Bros., 91 F.3d at 1371. Defalcation then occurs through the misappropriation or failure to properly account for those trust funds. Interstate Agency, 760 F.2d at 125. Although Garver stipulated to the existence of a fiduciary relationship sufficient to satisfy the fiduciary relationship" }, { "docid": "6628061", "title": "", "text": "themselves must have been obtained by fraud in the inception); Golant v. Care Comm. Inc., 216 B.R. 248 (N.D.Ill.1997) (debtor-attorney’s obligation to creditor for sanctions previously imposed by the district court, based on debtor’s conduct in unreasonably and vexatiously multiplying unrelated district court proceedings, was not debt for any money “obtained,” within meaning of “false pre tenses” exception to discharge); Fleming v. Preston (In re Preston), 47 B.R. 354, 357 (E.D.Va.1983) (debtor obtained no money, property or thing of value and creditor sustained no loss by reason of debtor’s issuance of insufficient funds check given to pay preexisting debt); see also 4 L. King, Collier’s on Bankruptcy, § 523.08[1][d], 523-44 (15th ed.1999) (“If the property or services were obtained before the making of any false representation, subsequent misrepresentations will have no effect on dischargeability.”) The defendant is entitled to judgment entered in his favor pursuant to § 523(a)(2)(A). C. Plaintiffs also seek to except the punitive damages award from discharge pursuant to § 523(a)(4), which provides: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt — (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny. 11 U.S.C. § 523(a)(4). The Court of Appeals for the Sixth Circuit has held that, “The attorney-client relationship, without more, is insufficient to establish the necessary fiduciary relationship for defalcation under § 523(a)(4). Instead, the debtor must hold funds in trust for a third party to satisfy the fiduciary relationship element of the defalcation provision of § 523(a)(4).” R.E. America, Inc. v. Garver (In re Garver), 116 F.3d 176, 179 (6th Cir.1997); see also Capitol Indem. Corp. v. Interstate Agency, Inc. (In re Interstate Agency), 760 F.2d 121 (6th Cir.1985) (decided under Bankruptcy Act § 17(a)(4), the predecessor to § 523(a)(4)). In footnote 6 of the opinion, the Garver court cited with favor Freeman v. Frick (In re Frick), 207 B.R. 731 (Bankr.N.D.Fla.1997), which concluded that “to extend the scope of Section 523(a)(4) generally to acts of malpractice or unethical conduct of professionals goes well beyond the longstanding precedents of" } ]

[ { "docid": "22743198", "title": "", "text": "W. EUGENE DAVIS, Circuit Judge: In our previous opinion, we affirmed the conviction and sentence of the Appellant Everardo Rosenbaum-AIanis (“Rosen-baum”). On December 11, 2006, the Supreme Court vacated our judgment and remanded the case to us for reconsideration in light of Lopez v. Gonzales, On remand, we conclude that Rosenbaum’s release from prison and subsequent deportation renders us incapable of granting relief to the appellant and we dismiss the appeal as moot. Rosenbaum pleaded guilty to an indictment charging him with being found in the United States after having been convicted of an aggravated felony in violation of 8 U.S.C. § 1326. After calculating his Guideline range at 18 to 24 months, the district court sentenced Rosenbaum to 18 months in the custody of the United States Bureau of Prisons, to be followed by a three-year term of supervised release. Rosenbaum appealed from the judgment of conviction and sentence, arguing that the district court miscalculated the advisory Sentencing Guidelines range when it found that his state felony conviction for possession of marihuana was an “aggravated felony” mandating an eight-level increase in his offense level calculation. This court rejected Rosenbaum’s claim as foreclosed by its precedent. The Supreme Court granted certiorari and remanded the case for reconsideration in light of its opinion in Lopez. In Lopez, the Supreme Court held that a state felony conviction for simple possession of a controlled substance that was not punishable as a felony under the federal Controlled Substances Act was not a “drug trafficking crime” under 18 U.S.C. § 924(c) and hence not an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B). Appellant argues that, in light of Lopez, his Texas felony conviction for simple possession of a controlled substance does not qualify as an aggravated felony because that crime was punishable only as a misdemeanor under the federal Controlled Substances Act and, accordingly, the district court erred in enhancing his sentence based on the Texas conviction. He argues further that, because the district court treated his previous conviction as an aggravated felony, he was eligible for (and received) a maximum three year term of" } ]

[ { "docid": "21604961", "title": "", "text": "harm of the ongoing possession and distribution of the images. Cf. Paroline, 134 S.Ct. at 1722 (“Complications may arise in disaggregating losses sustained as a result of the initial physical abuse, but those questions may be set aside for present purposes.”). Several circuit courts have expounded on. this issue post-Paroline. See, e.g., United States v. Galan, 804 F.3d 1287, 1289-91 (9th Cir. 2015) (“[T]he principles set forth by the [Supreme] Court lead to the conclusion that [the defendant] should not be required to pay for losses caused by the original abuser’s actions.”); United States v. Dunn, 777 F.3d 1171, 1181-82 (10th Cir. 2015) (“We think it inconsistent with ‘the bedrock principle that restitution should reflect the consequences of the defendant’s own conduct’ to hold [the defendant] accountable for those harms initially caused by [the victim’s] abuser.” (quoting Paroline, 134 S.Ct. at 1725)); see also United States v. Miner, 617 Fed.Appx. 102, 103 (2d Cir. 2015) (holding that the district court adequately disaggregated the victim’s losses). We have not yet directly addressed this issue and leave it in the first instance to the district court and further development of the record. In sum, on remand, the Government is permitted to present additional evidence related to the restitution award for these five victims. See Jones, 616 Fed.Appx. at 729. V. CONCLUSION For the foregoing reasons, we VACATE the restitution order and REMAND the case to the district court for further proceedings consistent with this opinion. The sentence is otherwise AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . In October 2016, while this appeal was pending, the Government filed an opposed motion to supplement the record on appeal with the letter sent by the victims’ counsel. This court granted the motion. This court also denied a motion for reconsideration filed by Jimenez. . Section 3553(b)(2) provides in full: In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under" }, { "docid": "22157262", "title": "", "text": "PER CURIAM: Pablo Estrada-Mendoza (Estrada) pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). Estrada’s presentence investigation report (PSR) set his base offense level at 8 and added 8 levels for his prior Texas felony conviction for possession of a controlled substance, which the PSR characterized as an “aggravated felony” under U.S.S.G. § 2L1.2(B)(1)(C). After a 3-level reduction for acceptance of responsibility, Estrada’s total offense level was 13. With a criminal history category of VI, his sentencing guidelines imprisonment range was 33 to 41 months. Estrada objected to the 8-level increase for the controlled substance offense on the ground that it should not be considered an aggravated felony because, although it was a felony under Texas law, it would be a misdemeanor under the federal Controlled Substances Act (CSA). The district court overruled the objection and sentenced Estrada to serve 33 months in prison. Applying the recent decision of the Supreme Court in Lopez v. Gonzales, — U.S. —, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), we vacate in part and remand for resentenc-ing. The district court’s ruling on Estrada’s objection was consistent with our holding in United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir.1997). In that case, we held that the § 2L1.2 increase for an aggravated felony is proper for a prior state felony drug conviction even though the same conduct would be a misdemeanor under the CSA. Hinojosa-Lopez, 130 F.3d at 693-94. This court has repeatedly relied on the holding of Hinojosa-Lopez to dispose of criminal cases with the same issue. One of those cases is United States v. Toledo-Flores, 149 Fed.Appx. 241, 242 (5th Cir. 2005). Reymundo Toldeo-Flores had been convicted of illegal entry. On appeal, he argued that his state felony conviction for possession of cocaine did not qualify as an aggravated felony because it was a misdemeanor under the CSA. We affirmed, relying on Hinojosa-Lopez. Id. In an unrelated case, the Eighth Circuit affirmed the Board of Immigration Appeals’ order removing alien Jose Antonio Lopez on the ground that he had previously been convicted of an" }, { "docid": "22703612", "title": "", "text": "523 F.3d 519, 526-27, 2008 WL 853576, *6 (5th Cir.2008). The current structure of the fast-track program is rationally related to, among others, the goals of promoting judicial efficiency, preserving prosecutorial discretion, and limiting downward departures overall. Id.; Gomez-Herrera, 2008 WL 886091 at *5-*6. Lopez has shown no grounds for reversal here. II Concerning his twenty-month sentence on revocation of his supervised release, Lopez makes no independent argument. He simply asserts that this sentence “magnifies” the unreasonableness of his seventy-two-month sentence. Lopez has directed this court to no authority suggesting that his revocation sentence, based on an entirely separate conviction in the District of Arizona, has any bearing on the reason ableness of the sentence imposed for his most recent conviction. As above, the seventy-two-month sentence was reasonable. The revocation sentence of twenty months falls squarely within the bounds of the eighteen to twenty-four month Guideline range, and is presumptively reasonable. Gall, 128 S.Ct. at 597. Lopez has not rebutted this presumption, nor has he shown any abuse of discretion. CONCLUSION For the aforementioned reasons, the sentences imposed are AFFIRMED. . 480 F.3d 713, 723 (5th Cir.2007). We note that the Supreme Court has granted certiorari on a similar question in United States v. Irizarry, 458 F.3d 1208 (11th Cir.2006), cert. granted - U.S. -, 128 S.Ct. 828, 169 L.Ed.2d 625 (2008). Absent an intervening Supreme Court case overruling prior precedent, we remain bound to follow our precedent even when the Supreme Court grants certiorari on an issue. United States v. Short, 181 F.3d 620, 624 (5th Cir.1999); Ellis v. Collins, 956 F.2d 76, 79 (5th Cir.1992). . Lopez also claims, in a point heading, that his due process rights were violated, but he fails completely to develop this argument in the body of his brief. Arguments inadequately briefed on appeal are waived. United States v. Freeman, 434 F.3d 369, 374 (5th Cir.2005). .Finally, Lopez contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) the enhancement provisions in 8 U.S.C. § 1326(b) are unconstitutional. He acknowledges this argument is foreclosed" }, { "docid": "608445", "title": "", "text": "for example, the Supreme Court has indicated that proving deliberate indifference usually requires a plaintiff to identify a pattern of similar constitutional violations, but Brown did not point to any similar incidents, much less a pattern of them. For this reason alone, summary judgment was appropriate. III. CONCLUSION Because genuine issues of material fact preclude summary judgment for Officer Lynch on Lon Brown’s § 1983 claims of unlawful arrest and excessive force, we REVERSE the district court as to these claims and REMAND for further proceedings consistent with this opinion. We AFFIRM the court’s summary judgment with respect to Brown’s claims against Chief Whitehorn and the City of Shreveport. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . A high crime area, according to Officer Lynch and Cpl. Flores. . Brown was released on bond the next morning. The criminal charges against him were dismissed. . Because we construe all facts “in the light depicted by the videotape” and, when inconclusive, in the light most favorable to the nonmoving party, the following is a distillation of Brown’s account, as corroborated (or at least not challenged) by the audio and video evidence. .Although Brown does not discuss in his brief the content of these mutterings, he testified in his deposition that he was accusing Officer Lynch of routinely harassing innocent people in the neighborhood. . Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir.2012). . FedJRXiv.P. 56(a). . Poole, 691 F.3d at 627 (citing Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.2000)). . Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir.2011) (quoting Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). . Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.2008). . Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir.2000) (citing Williams v. Bramer, 180 F.3d 699, 702 (5th Cir.1999)). . Brumfield, 551 F.3d at 326. . Pearson v." }, { "docid": "19352970", "title": "", "text": "United States, 547 U.S. 1054, 126 S.Ct. 1652, 164 L.Ed.2d 395 (2006), and Lopez v. Gonzales, 547 U.S. 1054, 126 S.Ct. 1651, 164 L.Ed.2d 395 (2006). Toledo-Flores, a Fifth Circuit criminal case, and Lopez, an Eighth Circuit immigration case, required our sister circuits to define what constitutes a “felony punishable under the Controlled Substances Act.” The Fifth Circuit and the Eighth Circuit’s holdings were consistent with our holding in Ibarra-Galindo. The two Circuits held that conduct that is punishable as a felony under state law, but a misdemeanor under federal law, constitutes a “felony punishable under the Controlled Substances Act,” and thus an “aggravated felony” under section 1101(a)(43)(B). ' In Toledo-Flores, the defendant-appellant objected to the sentencing court’s determination that his state simple possession offense, a felony under Texas law and a misdemeanor under federal law constitutes an “aggravated felony” for sentence enhancement purposes. The Fifth Circuit disagreed. See United States v. Estrada-Mendoza, 475 F.3d 258, 260 (5th Cir.2007). In Lopez, petitioner Lopez suffered a prior conviction in South Dakota for aiding and abetting the possession of cocaine. See Lopez v. Gonzales, 417 F.3d 934, 935 (8th Cir.2005). During Lopez’s removal proceedings, the government characterized this simple possession offense as an “aggravated felony” which left Lopez ineligible for cancellation of removal. See id. The Board of Immigration Appeals’s (BIA) agreed. See id. at 936. On appeal, the Eight Circuit affirmed the BIA and denied Lopez’s petition for review. See id. at 938. We postponed the decision in this case pending the Supreme Court’s resolution of these two consolidated appeals. On December 5, 2006, the Supreme Court decided Lopez. See Lopez v. Gonzales, — U.S. —, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). On the same day, the Supreme Court dismissed the writ of cer-tiorari in Toledo-Flores as improvidently granted. See Toledo-Flores v. United States, — U.S. —, 127 S.Ct. 638, 166 L.Ed.2d 481 (2006). In Lopez, the Court held that “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” Lopez, 127 S.Ct. at 633." }, { "docid": "12023279", "title": "", "text": "& N. Dec. 515 (BIA 2002), that a state drug offense was only an aggravated felony if it was a felony in the state in which it was committed, but that the Second Circuit had held in Aguirre v. INS, 79 F.3d 315 (2d Cir.1996), and Simpson, 319 F.3d at 85, that a state drug offense was an aggravated felony if it would be a felony under federal law. Declaring himself bound by the Second Circuit, the IJ held that Martinez’s convictions were aggravated felonies. The BIA summarily affirmed. Martinez filed a habeas petition in the Eastern District of New York on April 15, 2004. It was transferred to the Western District of New York and then, after full briefing to the district court, transferred to the Second Circuit on June 20, 2005, pursuant to the REAL ID Act. The case was argued before our court on May 18, 2006. The panel initially waited to make a decision until the Supreme Court had ruled in Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). After the Supreme Court decided Lopez, we requested supplemental briefing on the impact of that decision. On May 8, 2007, we remanded the case to the BIA for reconsideration in light of Lopez. C. Remand to the BIA On remand, the BIA did not request briefing. Rather, the Board simply rendered a new decision ordering that Martinez should be removed as an aggravated felon who is thus ineligible for relief. The Board observed that under Lopez, the question of whether Martinez’s state conviction was an aggravated felony under the INA rested upon whether that crime would have been punishable as a felony under the CSA, 21 U.S.C. § 801 et. seq. The Board reasoned that the New York crime of sale of marihuana is comparable to the federal crime of marihuana distribution, 21 U.S.C. § 841(a)(1), which pursuant to 21 U.S.C. § 841(b)(1)(D), is punishable by up to five years in prison and is therefore a felony. In so doing, the BIA held that although the distribution of “a small amount of" }, { "docid": "22157266", "title": "", "text": "1101(a)(43)(B); Lopez, — U.S. —, 127 S.Ct. 625, 629, 166 L.Ed.2d 462. Under 18 U.S.C. § 924(c), “the term ‘drug trafficking crime’ means any felony punishable under the Controlled Substances Act Lopez, — U.S. —, 127 S.Ct. 625, 627, 166 L.Ed.2d 462. Mere possession of a controlled substance is not a felony under the CSA. 21 U.S.C. § 844(a); Lopez, — U.S. —, 127 S.Ct. 625, 627, — L.Ed.2d —. The Supreme Court held, therefore, that the INA, 8 U.S.C. § 1101(a)(43)(B), does not penalize an alien for mere possession of a controlled substance. Lopez, — U.S. —, 127 S.Ct. 625, 633, 166 L.Ed.2d 462. The Court reversed the Eight Circuit’s judgment affirming the BIA’s order removing Lopez. Id. Given the Court’s reference to the Guidelines, its citation to Hinojosa-Lopez, and its interpretation of a phrase directly adopted by the Guidelines, Lopez ineluctably applies with equal force to immigration and criminal cases. The Government agrees. As Estrada was sentenced under now-rejected jurisprudence, we vacate his sentence and remand for resentencing. Estrada also challenges his conviction and sentence by arguing that, in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury is unconstitutional. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Estrada concedes as much, but he raises the argument to preserve it for further review. AFFIRMED IN PART; VACATED IN PART AND REMANDED. . All pending motions are denied." }, { "docid": "23175561", "title": "", "text": "rights affected where the defendant received a seventy-seven month term of imprisonment, but absent plain error, the defendant’s guideline range would have been at most thirty-three to forty-one months); Villegas, 404 F.3d at 364 (“In the absence of [the error], Villegas’s sentencing range would have been reduced from between twenty-one and twenty-seven months to between ten and sixteen months. Because these two sentencing ranges do not overlap, the district court’s error necessarily increased Villegas’s sentence and thus affected his substantial rights.”). Therefore, the district court’s application of the 16-level crime-of-violence enhancement constitutes plain error. In light of this substantial disparity, this plain error also affects the fairness of the judicial proceedings and warrants the exercise of our discretion to correct the error. See Garza-Lopez, 410 F.3d at 275 (concluding that the imposition of a sentence that was substantially greater than the guideline range affected the defendant’s substantial rights “and the fairness of the judicial proceedings”). For these reasons, we VACATE Gonzalez’s sentence and REMAND for RESENTENCING. . Gonzalez also challenges on appeal, as he did below, the constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors. As Gonzalez properly concedes, this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and he raises the argument only to preserve it. See United States v. Ortega-Gonzaga, 490 F.3d 393, 394 n. 1 (5th Cir.2007). This argument is “fully foreclosed from further debate.” United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007). . This court's decision in United States v. Murillo-Lopez, 444 F.3d 337 (5th Cir.2006), which neither party cites, is not to the contrary. There, the court applied the modified categorical approach to California Penal Code § 459, but only where the defendant \"[did] not argue that the district court improperly considered the criminal complaint in determining whether his burglary conviction constituted a 'crime of violence.'” Id. at 341. Because the defendant conceded that the modified categorical approach was appropriate in that case, the court was not confronted with the threshold question of whether to" }, { "docid": "22157263", "title": "", "text": "in part and remand for resentenc-ing. The district court’s ruling on Estrada’s objection was consistent with our holding in United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir.1997). In that case, we held that the § 2L1.2 increase for an aggravated felony is proper for a prior state felony drug conviction even though the same conduct would be a misdemeanor under the CSA. Hinojosa-Lopez, 130 F.3d at 693-94. This court has repeatedly relied on the holding of Hinojosa-Lopez to dispose of criminal cases with the same issue. One of those cases is United States v. Toledo-Flores, 149 Fed.Appx. 241, 242 (5th Cir. 2005). Reymundo Toldeo-Flores had been convicted of illegal entry. On appeal, he argued that his state felony conviction for possession of cocaine did not qualify as an aggravated felony because it was a misdemeanor under the CSA. We affirmed, relying on Hinojosa-Lopez. Id. In an unrelated case, the Eighth Circuit affirmed the Board of Immigration Appeals’ order removing alien Jose Antonio Lopez on the ground that he had previously been convicted of an aggravated felony under the Immigration and Nationality Act (INA). Lopez v. Gonzales, 417 F.3d 934, 937 (8th Cir.2005). Lopez’s aggravated felony was a state drug felony, but the same conduct would be a misdemeanor under the CSA. Id. Both Toledo-Flores and Lopez petitioned the Supreme Court for writs of certiorari, arguing that Hinojosa-Lopez and similar cases were wrongly decided. Brief of Petitioner, Toledo-Flores v. United States, No. 05-7664, 2005 WL 3940988, *11 (U.S. Nov.15, 2005); Brief of Petitioner, Lopez v. Gonzales, No. 05-547, 2005 WL 2875037, *13-15 (U.S. Oct.31, 2005). The Supreme Court granted certiorari in both cases and heard oral argument in both on the same day. Toledo-Flores v. United States, — U.S. —, 126 S.Ct. 1652, 164 L.Ed.2d 395 (2006); Lopez v. Gonzales, — U.S. —, 126 S.Ct. 1651, 164 L.Ed.2d 395 (2006). The Supreme Court thereafter dismissed the writ of certiorari in Toledo-Flores as improvidently granted, — U.S. —, 127 S.Ct. 638, 166 L.Ed.2d 481 (2006), and, on the same day, issued an opinion in Lopez, — U.S. —, 127 S.Ct. 625," }, { "docid": "22743199", "title": "", "text": "“aggravated felony” mandating an eight-level increase in his offense level calculation. This court rejected Rosenbaum’s claim as foreclosed by its precedent. The Supreme Court granted certiorari and remanded the case for reconsideration in light of its opinion in Lopez. In Lopez, the Supreme Court held that a state felony conviction for simple possession of a controlled substance that was not punishable as a felony under the federal Controlled Substances Act was not a “drug trafficking crime” under 18 U.S.C. § 924(c) and hence not an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B). Appellant argues that, in light of Lopez, his Texas felony conviction for simple possession of a controlled substance does not qualify as an aggravated felony because that crime was punishable only as a misdemeanor under the federal Controlled Substances Act and, accordingly, the district court erred in enhancing his sentence based on the Texas conviction. He argues further that, because the district court treated his previous conviction as an aggravated felony, he was eligible for (and received) a maximum three year term of supervised release, and that without the aggravated felony enhancement, the maximum term of supervised release would have been one year. Because Rosenbaum has completed the confinement portion of his sentence, any argument that the prison term should be reduced is moot and the only portion of the sentence remaining for consideration is the defendant’s term of supervised release. In order to resentence the defendant to correct any error in the defendant’s term of supervised release, Federal Rule of Criminal Procedure 43 requires the defendant to be present and have the opportunity to allocute. Both parties advise, however, that the defendant has completed his term of imprisonment and has been deported. Because the defendant has been deported to the Republic of Mexico and is legally unable, without permission of the Attorney General, to reenter the United States to be present for a resentencing proceeding as required by Rule 43, there is no relief we are able to grant him and his appeal is moot. Rosenbaum argues that this court’s decision in United States v. Lares-Meraz compels" }, { "docid": "796337", "title": "", "text": "was not an aggravated felony. Before the Supreme Court’s decision in Lopez, a Texas felony conviction for simple possession of marijuana was an aggravated felony under the clear law of this circuit. United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.1997) (holding that possession of marijuana under Texas Health & Safety Code § 481.121 is an aggravated felony), abrogated by Lopez v. Gonzales, — U.S. —, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). A state felony conviction for possession of marijuana was an aggravated felony under clearly established Fifth Circuit precedent at the time of Arce’s order of removal, appeal, and motion to reopen. The Supreme Court’s opinion in Lopez was not issued until after the time had expired for Arce to file a motion to reopen. Indeed, it was not issued until after the filing of Arce’s petition for review in this court. The Board could not have found that his offense was not an aggravated felony under clearly established Fifth Circuit law applicable at the time of its review. Thus, Arce is not barred from raising this purely legal issue on direct review of his order of removal. Of course we do not today hold that § 1252(d)(1) will never bar this court’s consideration of whether an offense is an aggravated felony. However, where Fifth Circuit precedent has directly addressed the status of the particular statute at issue and remains binding during all stages of proceedings before the Immigration Judge and the Board, our jurisdiction is not precluded by an alien’s failure to argue to the contrary below. We are therefore not precluded from applying the Supreme Court’s decision in Lopez to Arce’s case on his petition for direct review from the Board’s dismissal of his appeal. IV. Arce’s conviction for possession of marijuana is not an aggravated felony. Commission of an aggravated felony was the sole charge on which he was ordered removed. Because, in the light of Lopez, we hold that Arce’s conviction for possession of marijuana is not an aggravated felony, we vacate his order of removal. His petition for review is GRANTED, the" }, { "docid": "19352973", "title": "", "text": "beyond dispute that Lopez applies in both criminal sentencing and immigration matters. We acknowledge, therefore, that Ibarra-Galindo has been effectively overruled by Lopez and is no longer valid authority. Accordingly, under Lopez, the district court erred when it categorized Figueroa-Ocampo’s prior simple possession conviction as an “aggravated felony.” Because Figueroa-Ocampo’s prior simple possession conviction was not an “aggravated felony,” the eight-point “aggravated felony” enhancement was improper. But our inquiry does not end here. On January 31, 2006, shortly after the Supreme Court issued its opinion in Lopez, Figueroa-Oeampo completed serving his thirty-seven month sentence and was released to serve his three year term of supervised release. The government agrees with Figueroa-Oeampo that, under the Supreme Court’s recent decision in Lopez, Figueroa-Ocam-po’s criminal sentence should not have been enhanced based on his prior simple possession conviction. The parties, however, disagree as to the effect of the Lopez decision on Figueroa-Ocampo’s appeal in light of his subsequent release from custody. In short, the government contends that the appeal is moot. The government urges us to dismiss Figueroa-Ocampo’s appeal as moot because, in its view, under 18 U.S.C. § 3624(e), excess prison time is not credited to the supervised release term and may not reduce its length. The government cites United States v. Johnson, 529 U.S. 53, 60, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000), for the proposition that the term of supervised release begins upon the defendant’s actual release, and concludes that there is nothing that this court can do to shorten-up Figueroa-Ocampo’s term of supervised release. Figueroa-Oeampo disagrees. We agree with the government that we cannot credit Figueroa-Ocampo’s supervised release term with the “extra” time he served in custody! See Mujahid v. Daniels, 413 F.3d 991, 994 (9th Cir.2005) (reiterating previously recognized principle that “a prisoner who wrongfully serves excess prison time is not entitled to an automatic reduction in his term of supervised release.”). However, we do not agree with the government’s conclusion that Figueroa-Ocampo’s appeal is moot. [W]here a defendant has received a sentence that includes a period of supervised release, a challenge to the length of his sentence" }, { "docid": "22666702", "title": "", "text": "Almendarez-Torres. He then states that he is simply raising this argument on appeal to preserve it for possible review by the Supreme Court. Because Garza-Lopez made no objection to the alleged constitutional error below, we review it for plain error. United States v. Knowles, 29 F.3d 947, 951 (5th Cir.1994). This court has held that “[i]t is self-evident that basing a conviction on an unconstitutional statute is both ‘plain’ and ‘error’ ....” Id. at 951. Garza-Lopez’s argument that §§ 1326(b)(1) and (2) are unconstitutional after Apprendi fails in light of Almendarez-Torres and Fifth Circuit precedent. As Garza-Lopez readily admits, in Almendarez-Torres, the Supreme Court effectively rejected his argument. See Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. Furthermore, Apprendi did not overrule Almendarez-Torres. Instead, the Supreme Court stated in Apprendi that “we need not revisit [Almendarez-Torres] for purposes of our decision today to tréat the case as a narrow exception to the general rule we recalled at the outset.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. This court has repeatedly rejected arguments like the one made by Garza-Lopez and has held that, Almendarez-Torres remains binding despite Apprendi. See, e.g., United States v. Mendez-Villa, 346 F.3d 568, 570-71 (5th Cir.2003) (per curiam); United States v. Delgado-Nunez, 295 F.3d 494, 498 (5th Cir.2002). Accordingly, Garza-Lopez’s argument that §§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi fails. III. CONCLUSION For the foregoing reasons, we VACATE Garza-Lopez’s sentence and REMAND for resentencing consistent with this opinion. . Garza-Lopez also argues that the language of the California charging document simply tracks the language of § 11379(a). Thus, he contends that even if the district court had examined the charging document, it could not have concluded that he committed -a “drug trafficking offense.” On June 17, 2004, Garza-Lopez filed a motion to supplement the record with a copy of the California charging document. The government did not oppose this motion, which this court granted. Accordingly, the charging document is now part of the record. . Because we vacate Garza-Lopez’s sentence, we need not address his argument that the district court committed error under" }, { "docid": "10641383", "title": "", "text": "remand for resentencing. VACATED AND REMANDED Maroquin-Bran also contends that the district court, in determining that his California conviction constituted an \"aggravated felony,” improperly made him eligible for a twenty-year maximum term of imprisonment under 8 U.S.C. § 1326(b)(2) and an eight-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C). Given that the district court imposed neither the twenty-year maximum nor the eight-level enhancement, we address these arguments only because of their possible relevance on remand. \"Aggravated felony” has the same meaning under both the statutory and guideline provisions. See United States v. Matamoros-Modesta, 523 F.3d 260, 264 (4th Cir.2008). Such a felony requires \"illicit trafficking in a controlled substance ..., including a drug trafficking crime.” Id. application note 3(A); 8 U.S.C. § 1101(a)(43)(B) (2006). Mere possession does not constitute \"illicit trafficking” or a \"drug trafficking crime.” See 18 U.S.C. § 924(c)(2) (2006); 21 U.S.C. § 841(a) (2006); Lopez v. Gonzales, 549 U.S. 47, 53, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). Thus, on remand, the district court cannot impose either the twenty-year maximum or the eight-level enhancement on the basis of the California conviction — unless it determines that the conviction constituted a trafficking crime." }, { "docid": "22808557", "title": "", "text": "PRYOR, Circuit Judge: This appeal is on remand from the Supreme Court of the United States for us to reconsider whether the deadline for a defendant to file a notice of appeal in a criminal case under Federal Rule of Appellate Procedure 4(b) is jurisdictional. Jose Eduardo Lopez pleaded guilty to conspiracy to possess with intent to distribute methamphetamine. 21 U.S.C. § 846. After the district court granted Lopez’s construed motion for an extension of time in which to file a notice of appeal, this Court sua sponte dismissed Lopez’s appeal for lack of jurisdiction because Lopez’s notice of appeal was untimely under Rule 4(b). The Supreme Court vacated that order and remanded for further consideration in the light of Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Lopez v. United States, — U.S. -, 128 S.Ct. 806, 169 L.Ed.2d 605 (2007). After reconsideration, review of the record, supplemental briefs, and oral arguments, we agree with Lopez and the United States that the time limits for a criminal defendant under Rule 4(b) are not jurisdictional because they are not based on a federal statute. Although the deadline in Rule 4(b) for Lopez’s appeal is not jurisdictional, we grant the request of the United States to dismiss Lopez’s appeal as untimely. I. BACKGROUND Lopez pleaded guilty to conspiracy to possess with intent to distribute methamphetamine. 21 U.S.C. § 846. The district court sentenced Lopez at the low end of the guidelines range to a term of 235 months of imprisonment, followed by five years of supervised release. Final judgment was entered on February 6, 2007. The ten-day period for filing a notice of appeal expired on February 21, 2007. Fed. R.App. P. (4)(b)(l)(A). The 30-day period for extending the time to file a notice of appeal expired on March 23, 2007. Fed. R.App. P. 4(b)(4). On April 9, 2007, the clerk of the district court received and docketed Lopez’s pro se “Motion for Ap peal,” dated March 29, 2007. The district court construed Lopez’s motion as a motion for an extension of time in which to" }, { "docid": "21604962", "title": "", "text": "it in the first instance to the district court and further development of the record. In sum, on remand, the Government is permitted to present additional evidence related to the restitution award for these five victims. See Jones, 616 Fed.Appx. at 729. V. CONCLUSION For the foregoing reasons, we VACATE the restitution order and REMAND the case to the district court for further proceedings consistent with this opinion. The sentence is otherwise AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . In October 2016, while this appeal was pending, the Government filed an opposed motion to supplement the record on appeal with the letter sent by the victims’ counsel. This court granted the motion. This court also denied a motion for reconsideration filed by Jimenez. . Section 3553(b)(2) provides in full: In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless— (i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence greater than that described; (ii) the court finds that there exists a mitigating circumstance of a land or to a degree, that— (I) has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28, taking ac count of any amendments to such sentencing guidelines or policy statements by Congress; (II) has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and (III) should result in a sentence different from that described; or (iii) the court finds, on motion of the Government, that the defendant has provided substantial assistance" }, { "docid": "22157265", "title": "", "text": "166 L.Ed.2d 462. The Supreme Court began its opinion by stating that whether a crime is an “aggravated felony” has implications under both the section of the INA at issue in that case and the section of the Guidelines at issue in this one, the latter because the Guidelines adopted the INA definition of “aggravated felony.” Id. at 627. It then stated that it had granted certiorari in Lopez to resolve a circuit split, citing Hinojosa-Lopez and other cases, both criminal and immigration. Id. at 629 n. 3. The Court then analyzed whether an alien may be penalized under the INA for an “aggravated felony” when the crime was a felony under state law but would be a misdemeanor under the CSA. Id. at 629. The Supreme Court’s analysis began with the provision of the INA that penalizes an alien for a prior “aggravated felony” if the alien had been convicted of “illicit trafficking in a controlled substance ... including a drug trafficking crime (as defined in section 924(c) of title 18).” 8 U.S.C. § 1101(a)(43)(B); Lopez, — U.S. —, 127 S.Ct. 625, 629, 166 L.Ed.2d 462. Under 18 U.S.C. § 924(c), “the term ‘drug trafficking crime’ means any felony punishable under the Controlled Substances Act Lopez, — U.S. —, 127 S.Ct. 625, 627, 166 L.Ed.2d 462. Mere possession of a controlled substance is not a felony under the CSA. 21 U.S.C. § 844(a); Lopez, — U.S. —, 127 S.Ct. 625, 627, — L.Ed.2d —. The Supreme Court held, therefore, that the INA, 8 U.S.C. § 1101(a)(43)(B), does not penalize an alien for mere possession of a controlled substance. Lopez, — U.S. —, 127 S.Ct. 625, 633, 166 L.Ed.2d 462. The Court reversed the Eight Circuit’s judgment affirming the BIA’s order removing Lopez. Id. Given the Court’s reference to the Guidelines, its citation to Hinojosa-Lopez, and its interpretation of a phrase directly adopted by the Guidelines, Lopez ineluctably applies with equal force to immigration and criminal cases. The Government agrees. As Estrada was sentenced under now-rejected jurisprudence, we vacate his sentence and remand for resentencing. Estrada also challenges his conviction" }, { "docid": "10641382", "title": "", "text": "enhance his sentence under § 2L1.2(b)(1)(A). When, as here, the underlying statute prohibits both qualifying and non-qualifying offenses, the sentencing court may “determin[e] the character of’ the prior offense by “examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Given that the district court in this case did not have the benefit of the proper interpretation of § 2L1.2(b)(l)(A), we vacate the sentence and remand for resentencing in accordance with this opinion. On remand, if the district court determines that, based on Shepard-approved documents, the Government can demonstrate that the California court convicted Maroquin-Bran for drug-trafficking activity, it can apply the sixteen-level enhancement. If the district court determines that the Government cannot demonstrate that the California court convicted Maroquin-Bran for drug-trafficking activity, it cannot base the sixteen-level enhancement on the California conviction. IV. For the foregoing reasons, we vacate the sentence and remand for resentencing. VACATED AND REMANDED Maroquin-Bran also contends that the district court, in determining that his California conviction constituted an \"aggravated felony,” improperly made him eligible for a twenty-year maximum term of imprisonment under 8 U.S.C. § 1326(b)(2) and an eight-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C). Given that the district court imposed neither the twenty-year maximum nor the eight-level enhancement, we address these arguments only because of their possible relevance on remand. \"Aggravated felony” has the same meaning under both the statutory and guideline provisions. See United States v. Matamoros-Modesta, 523 F.3d 260, 264 (4th Cir.2008). Such a felony requires \"illicit trafficking in a controlled substance ..., including a drug trafficking crime.” Id. application note 3(A); 8 U.S.C. § 1101(a)(43)(B) (2006). Mere possession does not constitute \"illicit trafficking” or a \"drug trafficking crime.” See 18 U.S.C. § 924(c)(2) (2006); 21 U.S.C. § 841(a) (2006); Lopez v. Gonzales, 549 U.S. 47, 53, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). Thus, on remand, the district court cannot impose either the twenty-year maximum or the eight-level" }, { "docid": "22398064", "title": "", "text": "E.g., United States v. Wright, 496 F.3d 371, 375 n. 10 (5th Cir.2007). The first holding was abrogated by the Supreme Court’s opinion in Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), an immigration case. The Court rejected the argument that a single possession offense punished as a felony under state law, but as a misdemeanor under the CSA, qualifies as an aggravated felony. The Court was concerned that varying state criminal law classifications would frustrate the scheme Congress chose. Id. at 58-59, 127 S.Ct. at 632-33. Recognizing this potential incongruity, the Court concluded that federal, not state law is determinative. It held that “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” Id. at 60, 127 S.Ct. at 633. This procedure, which looks to conduct proscribed by state law, not just the elements of the state law offense, and compares that conduct to federal law has been termed the “hypothetical approach.” See, e.g., United States v. Cepeda-Rios, 530 F.3d 333, 335 (5th Cir.2008) (per curiam); United States v. Pacheco-Diaz, 513 F.3d 776, 779 (7th Cir.2008) (per curiam) denying rh’g to 506 F.3d 545 (7th Cir.2007); Berhe v. Gonzales, 464 F.3d 74, 80, 84 (1st Cir.2006). Although Lopez abrogated Sanchez-Villalobos’s first holding, the alternative holding remained untouched. In United States v. Cepeda-Rios, 530 F.3d 333 (5th Cir.2008) (per curiam), we reaffirmed that Lopez is “consistent with our earlier ‘hypothetical’ approach in SanchezVillalobos,” and determined that a second state possession offense that could have been punished as a felony under federal law qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). Id. at 334-35. Consequently, Carachuri’s case is controlled by the alternative holding in Sanchez-Villalobos, as unaltered by the Supreme Court in Lopez, and as reaffirmed in Cepedar-Rios. Nevertheless, Carachuri argues that the hypothetical approach applied in both Sanchez-Villalobos and Cepeda-Rios contravenes our prior case law. This court follows a categorical approach for immigration cases, under which “courts look to the text of the statute violated, not the underlying" }, { "docid": "22743201", "title": "", "text": "a contrary conclusion. In Lares-Meraz, the defendant, like Rosenbaum, was released and deported during the pen-dency of his appeal, while remaining subject to an unexpired term of supervised release. The panel in Lares-Meraz concluded that the case was not moot because of this remaining term of supervised release. The panel, however, was not faced with the prospect of resentencing the defendant because defense counsel conceded that any sentencing error was harmless. The panel therefore affirmed the sentence. Lares-Meraz does not control this case. By conceding that any error which formed the basis for his appeal was harmless and presenting no argument that militated against affirming the sentence, the defendant in Lares-Meraz did not seek any relief that the court could not grant. By contrast, in this case, the defendant, who is barred from entering the United States and who therefore cannot be resentenced, requests relief which we are unable to grant. We further reject defense counsel’s argument that the possibility of obtaining a waiver of the defendant’s presence at the sentencing hearing compels remand. No waiver has been presented to this court and the possibility of a future waiver is speculative. The appeal is therefore DISMISSED. . - U.S. -, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). . Lopez, 127 S.Ct. at 629-33. . See 8 U.S.C. § 1326(b); 18 U.S.C. § 3583(b); 18 U.S.C. § 3559. . See 18 U.S.C. § 3583(b). . 452 F.3d 352 (5th Cir.2006). . See 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction and Related Matters § 3553 (2d ed. 1984) (“[A] startling number of cases can be found dealing with the problems of mootness that arise as events overtake the pace of decision .... The central question nonetheless is constant-whether decision of a once living dispute continues to be justified by a sufficient prospect that the decision will have an impact on the parties.”)." } ]

[ { "docid": "10738650", "title": "", "text": "States unlawfully. To further assist them, he provided them with fraudulent documents for their travel. We think that a person of ordinary intelligence would understand that assisting those non-citizens indirectly to enter the United States, knowing that they would be entering the country illegally, encompasses encouraging or inducing them to do so under § 1324. As such, this claim fails. IV. Third, Tracy asserts a facial over-breadth challenge. We review the district court’s legal conclusions as to this issue de novo. McManus, 23 F.3d at 882. “According to ... First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech. The doctrine seeks to strike a balance between competing social costs.” United, States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). The government’s interest in prohibiting criminal conduct must be weighed against the danger of chilling constitutionally protected speech. Id. “[T]o maintain an appropriate balance, we have vigorously enforced the requirement that a statute’s overbreadth be substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep.” Id. Tracy declares that speech that encourages illegal aliens to come to the United States is protected by the First Amendment in certain instances. We have long held, however, “that speech ... that constitutes criminal aiding and abetting does not enjoy the protection of the First Amendment.” Rice v. Paladin Enters., Inc., 128 F.3d 233, 242 (4th Cir.1997). In his overbreadth challenge, Tracy again raises his direct versus indirect argument, declaring that merely encouraging unlawful travel to another country should not be covered by the statute. But, the statute does not make it illegal to encourage unlawful travel to another country. What it makes illegal is to encourage or to induce a non-citizen to come into this country, either directly or indirectly, “knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” § 1324(a)(l)(A)(iv). Although there may be some instances in which we might find that the statute chills protected speech, we are" } ]

[ { "docid": "20886559", "title": "", "text": "reside in this country by providing them with an opportunity to gain employment, support themselves, and avoid having to return to their native lands. “While offering them a chance to stand equally with all other American citizens, defendants encouraged them to continue to reside here.” Joint Appendix at 318. We arrive at the same conclusion on a somewhat different basis. The word “en courage” does not appear elsewhere in IRCA; hence, the statute as a whole does not assist with its definition. However, the development of the conduct proscribed by this section may be traced from the language of the predecessor statute to the language in the current law to arrive at a clear understanding of the meaning of “encourage” in § 1324(a)(1)(D). Subsection (a) of the former § 1324 stated, in pertinent part: Any person who willfully or knowingly encourages or induces, or attempts to encourage or induce, either directly or indirectly, the entry into the United States of any alien not lawfully entitled to enter or reside within the United States, shall be guilty of a felony. Criminal sanction in the predecessor statute extended only to bringing aliens into the country. IRCA revised this statutory scheme by extending its reach to additional specific conduct. Currently, § 1324(a)(1) subsection (A) proscribes bringing an alien into the country, subsection (B) prohibits transporting an illegal alien within the United States; subsection (C) forbids concealing, harboring or shielding an alien from detection; and subsection (D) bars encouraging aliens either to come into the country or to reside in this country once they are here. Thus, IRCA worked a substantial expansion in the types of activities held criminal under this statute. IRCA’s plain language distinguishes between these distinct categories of behavior and indicates that “encouraging” is not limited to bringing in, transporting or concealing illegal aliens. Rather, “encouraging” relates to actions taken to convince the illegal alien to come to this country or to stay in this country. Appellants’ actions reassured their clients that they could continue to work in the United States, that they would not be subject to the threat of" }, { "docid": "709183", "title": "", "text": "and Nationality Act. However, subsection (27) is a much more closely targeted, narrow provision than is subsection (28) and, as indicated below, it has been used only a few dozen times each year. Moreover, as stated above, unlike subsection (28), the provision under consideration here does not authorize waivers at all, but it provides instead that an alien in the exclud able class “shall” be ineligible for admission to the United States. It is, of course, sometimes difficult to know precisely what the Congress intended, and the present situation is no exception. It may be that, by explicitly prohibiting the practice of denying subsection (28) waivers for foreign policy reasons, Congress meant to signal the Executive not to consider such reasons at all in its exclusion policy; or it may be that, by confining its prohibition to subsection (28), it did not intend to disturb the Executive’s longstanding policy and practice of using subsection (27) for foreign policy reasons in addition to other reasons that may be encompassed under “public interest” or “welfare ... of the United States.” In view of the substantial independent authority the Executive possesses in the fields of foreign relations and the admission of aliens, the Court would not be justified in interpreting the congressional action with respect to subsection (28) as a prohibition on Executive power generally unless the expression of legislative intent were far more clear than it is in this instance. For these reasons, the Court concludes that, on its face, the statute sanctions the denial of the visas at issue here. IV There are, of course, significant First Amendment implications to the statute. The Supreme Court has held that the First Amendment protects not only speech but also the right to receive information and ideas. These plaintiffs claim accordingly that they are entitled to have the invited aliens enter the United States because they wish to exercise that right. It is not an answer to say — as the government does— that there are alternative means (mails, television, travel abroad) to receive the message of these aliens, for as the Court said" }, { "docid": "22582716", "title": "", "text": "“to help” does not turn an offense under § 1324(a)(l)(A)(iv) into an offense under § 1324(a)(1)(A)®. Subsection 1324(a)(1)(A)® criminalizes more than the mere act of bringing an alien to the United States because it also requires that the alien be brought to a place other than a port of entry, which is different conduct than what is covered by § 1324(a)(l)(A)(iv). And § 1324(a)(1)(A)® applies to aliens with prior official authorization to enter, whereas § 1324(a)(l)(A)(iv) applies to aliens whose entry is illegal. Accordingly, we do not agree with Lopez that his conviction under § 1324(a)(l)(A)(iv) renders § 1324(a)(l)(A)(i) superfluous. In turn, § 1324(a)(l)(A)(v)(II) criminalizes aiding or abetting the commission of any of the preceding acts in subsection 1324(a)(1)(A), including both 1324(a)(1)(A)(i) and 1324(a)(l)(A)(iv). Subsection 1324(a)(l)(A)(v)(II) cannot be superfluous on its own without reference to the underlying subsections, and since subsection 1324(a)(l)(A)(i) is not rendered superfluous by the district court’s interpretation of subsection 1324(a)(l)(A)(iv), neither is subsection 1324(a)(l)(A)(v)(II). In any event, in other decisions in this circuit, the act of “helping” aliens come to, enter, or remain in the United States were deemed violations of subsection 1324(a)(l)(A)(iv). United States v. Ndiaye, 434 F.3d1270, 1278 (11th Cir.2006); United States v. Kuku, 129 F.3d 1435 (11th Cir.1997). In Ndiaye, this Court affirmed a conviction under subsection 1324(a)(l)(A)(iv) for “assisting] over seventy Indonesian aliens in securing Social Security numbers.” The defendant had argued his actions could not constitute a violation of the statute because “[a] Social Security card did not change anyone’s status, and there was no evidence that anyone was ‘induced’ to live here by obtaining such a card.” Ndiaye, 434 F.3d at 1296. This Court affirmed Ndiaye’s conviction because, “[a] jury could find that [the defendant’s] assistance in helping [an alien] obtain a Social Security card, which the evidence established he is not entitled to have, encouraged or induced him to reside in this country in violation of the statute.” Id. at 1298 (emphasis added). Similarly, in Kuku, we affirmed a conviction under subsection 1324(a)(l)(A)(iv) for approving applications for social security cards without proper documentation filed on behalf of illegal aliens." }, { "docid": "22582714", "title": "", "text": "in context, the first dictionary definition would render another term in § 2422(b), “persuade,” as superfluous); CBS, 245 F.Sd at 1225-26 (“One canon recognized by the Supreme Court is that where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (internal quotation marks omitted). However, an examination of §§ 1324(a)(l)(A)(i) and 1324(a)(l)(A)(v)(II) shows that the definition of “to help” for “encourage” in § 1324(a)(l)(A)(iv) does not render superfluous these other two subsections of § 1324. First, § 1324(a)(l)(A)(iv), with which Lopez was charged, criminalizes “encouraging or inducing” an alien to come to the United States knowing or in reckless disregard that the alien’s coming to the United States is in violation of law. The elements of § 1324(a)(l)(A)(iv) are: (1) encouraging or inducing; (2) an alien; (3) to come to, enter, or reside in the United States; and (4) knowing or in reckless disregard that the alien’s coming to, entering, or residing in the United States is illegal. The fourth element requires that the alien’s coming to, entry, or residence in the United States is illegal and that the defendant knew or recklessly disregarded that. In contrast, § 1324(a)(l)(A)(i) makes it a crime to knowingly bring or attempt to bring an alien to the United States at a place other than a designated port of entry, regardless of whether the alien can legally be admitted into the United States. The elements of § 1324(a)(1)(A)® are: (1) knowing that a person is an alien; (2) bringing or attempting to bring; (3) an alien; (4) to the United States; (5) at a place other than a designated port of entry or other authorized place; and (6) regardless of whether the alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future action that may be taken with respect to the alien. An examination of the elements of these two subsections shows that defining “encourage” as" }, { "docid": "19774228", "title": "", "text": "before the Third Circuit when the jury in this case returned its verdict, and as to which the mandate issued just last month, DelRio-Mocci v. Connolly Properties, Inc., 672 F.3d 241 (3d Cir.2012), the plaintiff brought a civil RICO suit against the property managers of his apartment building, claiming that they were engaged in a scheme to seek out illegal aliens as tenants so the management company could neglect repairs to the premises on the theory that illegal aliens would not complain about the housing conditions. The district court dismissed the complaint for failure, inter alia, to allege the predicate act of a violation of § 1324(a)(l)(A)(iv), and therefore failed to state a RICO conspiracy claim upon which relief could be granted. The Third Cir cuit affirmed on somewhat different grounds. The Third Circuit began by analyzing the scope of § 1324(a)(l)(A)(iv)’s prohibition against “encourag[ing] or inducting] an alien to come to, enter, or reside in the United States.” It held that “encouragement or inducement must also be ‘substantial’ to support a conviction under the statute. This means not just general advice ... but some affirmative assistance that makes an alien lacking lawful immigration status more likely to enter or remain in the United States than she otherwise might have been.” Id. at 248. Induce, the Third Circuit held, “plainly refers to conduct that causes someone to do something that they might otherwise not do.” Id. Looking to dictionaries by Memam-Webster and Black, the court noted that in the context of § 1324(a)(l)(A)(iv), “ ‘encourage’ ... also refers to conduct that causes someone to do something that they otherwise might not do.” Id. at 248-49. The Third Circuit adopted this view of “encouraging” and “inducing” in part because a broader reading of subsection (iv) would otherwise swallow up the other subsections: Subsection (i) prohibits bringing an alien lacking lawful immigration status to the United States other than at a designated port of entry. Subsection (ii) prohibits transporting such an alien within the United States in furtherance of their illegal presence in this country. Finally, subsection (iii), which we have already" }, { "docid": "14505065", "title": "", "text": "affirmative act that serves as a catalyst or trigger that drives, motivates, or spurs another individual to embark on a course of action that he might not have otherwise.” United States v. Lopez, 590 F.3d 1238, 1259 (11th Cir. 2009) (Barkett, J., dissenting). Thus, “encourage” is best defined as “ ‘[t]o instigate; to incite to action; to give courage to; to inspirit; to embolden; to raise confidence; to make confident.’ ” Id. (quoting Black’s Law Dictionary 620 (4th ed.1968)). These definitions demonstrate that the word “encourage,” in the context of this statute, also refers to conduct that causes someone to do something that they otherwise might not do. Indeed, reading the encouraging or inducing subsection of the statute too broadly risks rendering the remaining subsections of 8 U.S.C. § 1324(a)(1)(A) redundant or superfluous. Subsection (i) prohibits bringing an alien lacking lawful immigration status to the United States other than at a designated port of entry. Subsection (ii) prohibits transporting such an alien within the United States in furtherance of their illegal presence in this country. Finally, subsection (iii), which we have already discussed at length, prohibits harboring an alien not lawfully present. If we define “encourage” merely as “to help,” then the particular conduct that is prohibited in subsections (i)-(iii) is subsumed by the general prohibition against helping an undocumented person to “come to, enter, or reside in” the United States in subsection (iv). “It is a well known canon of statutory construction that courts should construe statutory language to avoid interpretations that would render any phrase superfluous.” United States v. Cooper, 396 F.3d 308, 312 (3d Cir.2005); see also Lopez, 590 F.3d at 1259 (“ ‘A basic premise of statutory construction is that a statute is to be interpreted so that no words shall be discarded as being meaningless, redundant, or mere surplusage.’ ” (quoting United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir.1991))). Accordingly, we read subsection (iv) as prohibiting a person from engaging in an affirmative act that substantially encourages or induces an alien lacking lawful immigration status to come to, enter, or reside in the" }, { "docid": "22582743", "title": "", "text": "reversible error. By defining “encourage” so generally to mean “help,” the district court rendered at least one other statutory subsection superfluous and also constructively amended the indictment. Jose Lopez drove the boat in which seventeen aliens were being smuggled into the United States. This conduct appears to violate another provision of the same statute, 8 U.S.C. § 1324(a)(2), which prohibits the knowing transportation of an alien who has not received prior official authorization to enter the United States. However, Lopez was not charged with violating this subsection. Rather, he was charged with violating § 1324(a)(l)(A)(iv), which prohibits the “encouragement” or “inducement” of an alien to come to the United States with the knowledge or reckless disregard of the fact that the alien’s entry into the United States is in violation of the law. The majority’s decision eschews the ordinary and common sense meaning of the word “encourage” in favor of the most general and least meaningful possible in terpretation, namely, “to help.” The majority reasons that one form of “help” is mere transportation. The majority’s interpretation thus criminalizes not, as it suggests, two aspects of the same conduct but rather the same aspect of the same conduct. That is, if “encourage” as applied to bringing aliens into the United States subsection (a)(1) means “help” and “help” includes transportation, then subsection (a)(2) (transportation) must likewise means exactly the same thing as subsection (a)(1) (“encouraging” or “inducing” — or, in the majority’s terms, “helping” an illegal entry). But surely “encouragement” or “inducement” under (a)(1) must criminalize something different than mere transportation, otherwise (a)(2) would be redundant. “A basic premise of statutory construction is that a statute is to be interpreted so that no words shall be discarded as being meaningless, redundant, or mere surplus-age.” United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir.1991). Reading the statute as a whole — with “encouragement” or “inducement” in context — demonstrates that “encourage” must be read to mean something more than mere “help” in order to avoid rendering (a)(2) redundant. See United States v. Murrell, 368 F.3d 1283, 1287 (11th Cir.2004) (disfavoring interpretation of" }, { "docid": "4383121", "title": "", "text": "pursuant to which the drug manufacturing instructions were found, the Court of Appeals explicitly foreclosed a First Amendment defense not only to the search itself, but also to a later prosecution: To the extent ... that Barnett appears to contend that he is immune from search or prosecution because he uses the printed word in encouraging and counseling others in the commission of a crime, we hold expressly that the first amendment does not provide a defense as a matter of law to such conduct. Id. at 843 (emphasis in original); see also id. at 842 (“The first amendment does not provide a defense to a criminal charge simply because the actor uses words to carry out his illegal purpose. Crimes, including that of aiding and abetting, frequently involve the use of speech as part of the criminal transaction.”). The Ninth Circuit derided as a “specious syllogism” with “no support in the law” the publisher’s argument that the First Amendment protected his sale of the instruction manual simply because the First Amendment protects the written word. Id. at 842. The principle of Barnett, that the provision of instructions that aid and abet another in the commission of a criminal offense is unprotected by the First Amendment, has been uniformly accepted, and the principle has been applied to the aiding and abetting of innumerable crimes. Notably, then-Judge Kennedy, in express reliance upon Barnett, invoked the principle in United States v. Freeman to sustain convictions for the aiding and abetting of tax fraud. 761 F.2d 549, 552-53 (9th Cir.1985), cert. denied, 476 U.S. 1120, 106 S.Ct. 1982, 90 L.Ed.2d 664 (1986). In Freeman, the Ninth Circuit concluded that the defendant could be held criminally liable for counseling tax evasion at seminars held in protest of the tax laws, even though the speech that served as the predicate for the conviction “spr[ang] from the anterior motive to effect political or social change.” 761 F.2d at 551. Said the court: [T]he First Amendment is quite irrelevant if the intent of the actor and the objective meaning of the words used are so close in" }, { "docid": "10738649", "title": "", "text": "and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Tracy avers that § 1324(a)(l)(A)(iv) is unconstitutionally vague because he did not have fair notice that his conduct violated the statute. We need not linger long here. Much of what Tracy sets forth in his vagueness argument we have already considered and rejected in our discussion of the sufficiency of the indictment. Tracy states, in effect, that a person of ordinary intelligence would not understand that providing false travel documents from Cuba or instructions as to how to come from Cuba to the United States would constitute encouraging a non-citizen to come to the United States illegally. Moreover, according to Tracy, there is no precedent for allowing Tracy to be charged for assisting non-citizens to come indirectly toward the United States, as opposed to helping them come directly to the United States. Tracy helped non-citizens in travel, knowing that the end result was that they would enter the United States unlawfully. To further assist them, he provided them with fraudulent documents for their travel. We think that a person of ordinary intelligence would understand that assisting those non-citizens indirectly to enter the United States, knowing that they would be entering the country illegally, encompasses encouraging or inducing them to do so under § 1324. As such, this claim fails. IV. Third, Tracy asserts a facial over-breadth challenge. We review the district court’s legal conclusions as to this issue de novo. McManus, 23 F.3d at 882. “According to ... First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech. The doctrine seeks to strike a balance between competing social costs.” United, States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). The government’s interest in prohibiting criminal conduct must be weighed against the danger of chilling constitutionally protected speech. Id. “[T]o maintain an appropriate balance, we have vigorously enforced the requirement that a statute’s overbreadth be substantial, not only in an absolute sense," }, { "docid": "14505066", "title": "", "text": "Finally, subsection (iii), which we have already discussed at length, prohibits harboring an alien not lawfully present. If we define “encourage” merely as “to help,” then the particular conduct that is prohibited in subsections (i)-(iii) is subsumed by the general prohibition against helping an undocumented person to “come to, enter, or reside in” the United States in subsection (iv). “It is a well known canon of statutory construction that courts should construe statutory language to avoid interpretations that would render any phrase superfluous.” United States v. Cooper, 396 F.3d 308, 312 (3d Cir.2005); see also Lopez, 590 F.3d at 1259 (“ ‘A basic premise of statutory construction is that a statute is to be interpreted so that no words shall be discarded as being meaningless, redundant, or mere surplusage.’ ” (quoting United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir.1991))). Accordingly, we read subsection (iv) as prohibiting a person from engaging in an affirmative act that substantially encourages or induces an alien lacking lawful immigration status to come to, enter, or reside in the United States where the undocumented person otherwise might not have done so. Thus, subsection (iv) has the distinct character of foreclosing the type of substantial assistance that will spur a person to commit a violation of immigration law where they otherwise might not have. The Property Managers in this case did not engage in an affirmative act that served as a catalyst for aliens to reside in the United States in violation of immigration law when they might not have otherwise. Bolmer suggests that the Property Managers provided aliens not lawfully present with rental housing, which other companies would not do, thereby encouraging them to reside in the United States when they otherwise might not have. However, Bolmer did not allege that these aliens would not or could not have resided in the United States without renting apartments in Connolly Properties’ buildings. Nor, given the facts of this ease, would such an assertion have been facially plausible, as the motion to dismiss standard requires. See Warren General Hosp. v. Amgen, Inc., 643 F.3d 77, 83" }, { "docid": "22582713", "title": "", "text": "Dictionary and conform to other dictionary definitions of those words. See, e.g., Merriam Webster’s Collegiate Dictionary 381 (10th ed. 1996) (defining ‘encourage’ as ‘to inspire with courage, spirit, or hope ... to spur on ... to give help or patronage to’).” He, 245 F.3d at 959-60. Lopez alternatively argues that “encourage” cannot mean “to help” in § 1324(a)(l)(A)(iv) because construing “encourage” that broadly would render at least two other provisions of § 1324 superfluous — namely, 8 U.S.C. §§ 1324(a)(l)(A)(i) and 1324(a)(l)(A)(v)(II). A dictionary definition of an undefined statutory term is not always dispositive, and we still may consider the statutory term as it is used in the context of the statute as a whole. Santos, 128 S.Ct. at 2024 (“Since context gives meaning, we cannot say [a statute] is truly ambiguous until we consider [the disputed statutory term] not in isolation but as it is used in the [statute].”); see also Murrell, 368 F.3d at 1287 (construing “induce” in 18 U.S.C. § 2422(b) as the second of two different dictionary definitions because, when viewed in context, the first dictionary definition would render another term in § 2422(b), “persuade,” as superfluous); CBS, 245 F.Sd at 1225-26 (“One canon recognized by the Supreme Court is that where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (internal quotation marks omitted). However, an examination of §§ 1324(a)(l)(A)(i) and 1324(a)(l)(A)(v)(II) shows that the definition of “to help” for “encourage” in § 1324(a)(l)(A)(iv) does not render superfluous these other two subsections of § 1324. First, § 1324(a)(l)(A)(iv), with which Lopez was charged, criminalizes “encouraging or inducing” an alien to come to the United States knowing or in reckless disregard that the alien’s coming to the United States is in violation of law. The elements of § 1324(a)(l)(A)(iv) are: (1) encouraging or inducing; (2) an alien; (3) to come to, enter, or reside in the United States; and (4) knowing or in reckless disregard that the alien’s coming" }, { "docid": "19774229", "title": "", "text": "statute. This means not just general advice ... but some affirmative assistance that makes an alien lacking lawful immigration status more likely to enter or remain in the United States than she otherwise might have been.” Id. at 248. Induce, the Third Circuit held, “plainly refers to conduct that causes someone to do something that they might otherwise not do.” Id. Looking to dictionaries by Memam-Webster and Black, the court noted that in the context of § 1324(a)(l)(A)(iv), “ ‘encourage’ ... also refers to conduct that causes someone to do something that they otherwise might not do.” Id. at 248-49. The Third Circuit adopted this view of “encouraging” and “inducing” in part because a broader reading of subsection (iv) would otherwise swallow up the other subsections: Subsection (i) prohibits bringing an alien lacking lawful immigration status to the United States other than at a designated port of entry. Subsection (ii) prohibits transporting such an alien within the United States in furtherance of their illegal presence in this country. Finally, subsection (iii), which we have already discussed at length, prohibits harboring an alien not lawfully present. If we define “encourage” merely as “to help,” then the particular conduct that is prohibited in subsections (i)-(iii) is subsumed by the general prohibition against helping an undocumented person to “come to, enter, or reside in” the United States in subsection (iv). Id. at 249. Noting that courts read statutes to avoid, if possible, making any part superfluous, the Third Circuit read subsection (iv) as prohibiting a person from engaging in an affirmative act that substantially encourages or induces an alien lacking lawful immigration status to come to, enter, or reside in the United States where the undocumented person otherwise might not have done so. Thus, subsection (iv) has the distinct character of foreclosing the type of sub stantial assistance that will spur a person to commit a violation of immigration law where they otherwise might not have. Id. (emphasis added). The Third Circuit has, I think, developed the reading of the statute most carefully tailored both to its plain language and the canons of" }, { "docid": "19774230", "title": "", "text": "discussed at length, prohibits harboring an alien not lawfully present. If we define “encourage” merely as “to help,” then the particular conduct that is prohibited in subsections (i)-(iii) is subsumed by the general prohibition against helping an undocumented person to “come to, enter, or reside in” the United States in subsection (iv). Id. at 249. Noting that courts read statutes to avoid, if possible, making any part superfluous, the Third Circuit read subsection (iv) as prohibiting a person from engaging in an affirmative act that substantially encourages or induces an alien lacking lawful immigration status to come to, enter, or reside in the United States where the undocumented person otherwise might not have done so. Thus, subsection (iv) has the distinct character of foreclosing the type of sub stantial assistance that will spur a person to commit a violation of immigration law where they otherwise might not have. Id. (emphasis added). The Third Circuit has, I think, developed the reading of the statute most carefully tailored both to its plain language and the canons of statutory construction. That reading is applicable to the circumstances of this case. Circuits that earlier gave a broad reading to “encouraging or inducing” were faced with defendants who were personally and actively involved with bringing illegal aliens into the United States. See, e.g., U.S. v. Lopez, 590 F.3d 1238, 1249-52 (11th Cir.2002) (reading “encouraging or inducing” to be synonymous with “helping,” where Lopez captained a boat, picked up illegal aliens, and navigated the boat to the United States); United States v. Fujii, 301 F.3d 535, 540 (7th Cir.2002) (holding that “[t]o prove that Fujii ‘encouraged or induced’ the aliens, all that the government needed to establish was that Fujii knowingly helped or advised the aliens,” where Fujii was flying with the aliens to the United States). Here, of course, Henderson was not actively involved in bringing Bitencourt to the United States, and it is unclear how the Fourth, Eleventh, and Seventh Circuits would view Henderson’s de minimis assistance under the “reside” portion of § 1324(a)(l)(A)(iv) if directly confronted with such factual circumstances. The developing case" }, { "docid": "7112912", "title": "", "text": "L.Ed.2d 1498 (1957)). This does not mean that government cannot regulate at all or subject such speech to some amount of scrutiny. It does mean, however, that in this area “ ‘so closely touching our most precious freedoms,’ ” precision of regulation must be the touchstone. Id. at 41, 96 S.Ct. 612 (quoting NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)). Ambiguity and uncertainty in a regulation compel a speaker ‘“to hedge and trim,’ ” and can invalidate the regulation. Id. at 43, 96 S.Ct. 612 (quoting Thomas v. Collins, 323 U.S. 516, 535, 65 S.Ct. 315, 89 L.Ed. 430 (1945)). Administrative code rule 351— 4.100(1) regulates political speech and therefore is subject to precision of regulation on pain of invalidation under the First Amendment. Subsection (a) provides a definition of express advocacy which tracks the language approved by Buckley, 424 U.S. at 44 & n. 52, 96 S.Ct. 612; see Iowa Admin. Code r. 351-4.100(1)(a) (finding express advocacy includes statements such as “vote for the Governor,” “re-elect your State Senator,” etc.). IRLC does not challenge this definition, but instead challenges subsection (b), which provides that express advocacy means communication that: b. When taken as a whole and with limited reference to external events such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s) ... because: (1) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and (2) Reasonable minds could not differ as to whether it encourages action to elect or defeat one or more clearly identified candidate(s) ... or encourages some other kind of action. Iowa Admin. Code r. 351-4.100(l)(b). To avoid uncertainty, and therefore invalidation of a regulation of political speech, the Supreme Court in Buckley, established a bright-line test. See Buckley, 424 U.S. at 43-44, 96 S.Ct. 612; see also Christian Action Network, 110 F.3d at 1051. The Supreme Court’s focus was on whether the communication contains “express” or “explicit” words of advocacy for" }, { "docid": "4383120", "title": "", "text": "as it concerns the instant case, the speech-act doctrine has long been invoked to sustain convictions for aiding and abetting the commission of criminal offenses. Indeed, every court that has addressed the issue, including this court, has held that the First Amendment does not necessarily pose a bar to liability for aiding and abetting a crime, even when such aiding and abetting takes the form of the spoken or written word. Thus, in a case indistinguishable in principle from that before us, the Ninth Circuit expressly held in United States v. Barnett, 667 F.2d 835 (9th Cir.1982), that the First Amendment does not provide publishers a defense as a matter of law to charges of aiding and abetting a crime through the publication and distribution of instructions on how to make illegal drugs. In rejecting the publisher’s argument that there could be no probable cause to believe that a crime had been committed because its actions were shielded by the First Amendment, and thus a fortiori there was no probable cause to support the search pursuant to which the drug manufacturing instructions were found, the Court of Appeals explicitly foreclosed a First Amendment defense not only to the search itself, but also to a later prosecution: To the extent ... that Barnett appears to contend that he is immune from search or prosecution because he uses the printed word in encouraging and counseling others in the commission of a crime, we hold expressly that the first amendment does not provide a defense as a matter of law to such conduct. Id. at 843 (emphasis in original); see also id. at 842 (“The first amendment does not provide a defense to a criminal charge simply because the actor uses words to carry out his illegal purpose. Crimes, including that of aiding and abetting, frequently involve the use of speech as part of the criminal transaction.”). The Ninth Circuit derided as a “specious syllogism” with “no support in the law” the publisher’s argument that the First Amendment protected his sale of the instruction manual simply because the First Amendment protects the written" }, { "docid": "3669847", "title": "", "text": "fit within Brandenburg’s narrow exception to the general rule that advocacy to violate the law is protected speech. According to the Attorney General, speech that falls within Brandenburg ’s incitement of imminent lawless action exception is not constitutionally protected. We have serious doubts about this argument in light of R.A.V. v. City of St. Paul, Minnesota, 505. U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). RAV. involved the constitutionality of St. Paul’s hate speech ordinance. In striking down the statute, Justice Scalia, writing for the Court, rejected the notion that expressive activity could be devoid of constitutional protection. We have sometimes said that these categories of expression [obscenity, defamation, fighting words] are not within the area of constitutionally protected speech or that the protection of the First Amendment does not extend to them. Such statements must be taken in context ... What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.) — not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content. Id. at 383-84, 112 S.Ct. at 2543. Thus, incitement of imminent lawless action is not bereft of constitutional protection and regulation of such speech must be related to its constitutionally proscribable content. Nevertheless, we need not consider whether § 16-1-28 appropriately regulates speech falling within the Brandenburg exception, as the Attorney General suggests, because the statute is not capable of such a narrow interpretation. The Attorney General’s proposed construction of § 16-1-28 is an insupportable interpretation of the statute. The key language from part (a) of the statute prohibits funding any group which “fosters or promotes a lifestyle or actions prohibited by the sodomy and sexual misconduct laws.” The plain meaning of this language is broad. The legislature used similarly broad language in part (b), which prohibits funding any group that “encourage[s] its members or encourage[s] other persons to engage in [sodomy] or provide information or materials that explain how [sodomy] may" }, { "docid": "4383113", "title": "", "text": "in the commission of the murders of Mildred and Trevor Horn and Janice Saunders, the district court granted Paladin’s motion for summary judgment and dismissed plaintiffs’ claims that Paladin aided and abetted Perry, holding that these claims were barred by the First Amendment as a matter of law. Because long-established caselaw provides that speech — even speech by the press — that constitutes criminal aiding and abetting does not enjoy the protection of the First Amendment, and because we are convinced that such caselaw is both correct and equally applicable to speech that constitutes civil aiding and abetting of criminal conduct (at least where, as here, the defendant has the specific purpose of assisting and encouraging commission of such conduct and the alleged assistance and encouragement takes a form other than abstract advocacy), we hold, as urged by the Attorney General and the Department of Justice, that the First Amendment does not pose a bar to a finding that Paladin is civilly liable as an aider and abetter of Perry’s triple contract murder. We also hold that the plaintiffs have stated against Paladin a civil aiding and abetting claim under Maryland law sufficient to withstand Paladin’s motion for summary judgment. For these reasons, which we fully explain below, the district court’s grant of summary judgment in Paladin’s favor is reversed and the case is remanded for trial. II. A- In the seminal case of Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), the Supreme Court held that abstract advocacy of lawlessness is protected speech under the First Amendment. Although the Court provided little explanation for this holding in its brief per curiam opinion, it is evident the Court recognized from our own history that such a right to advocate lawlessness is, almost paradoxically, one of the ultimate safeguards of liberty. Even in a society of laws,'one of the most indispensable freedoms is that to express in the most impassioned terms the most passionate disagreement with the laws themselves, the institutions of, and created by, law, and the individual officials with whom the laws and institutions" }, { "docid": "22582742", "title": "", "text": "amended the indictment. Because the district court's supplemental jury instruction did not misstate the definition of \"encourage,” the supplemental instruction did not modify the elements of the offense charged as to in effect charge Lopez with a different crime. See United States v. Edwards, 526 F.3d 747, 760 (11th Cir.2008) (\"A constructive amendment occurs when the essential elements of the offense are altered to broaden the possible bases for conviction beyond what is contained in the indictment.”) (citations omitted); United States v. Behety, 32 F.3d 503, 508-09 (11th Cir.1994). . We review a claim of prosecutorial misconduct de novo because it is a mixed ques-lion of law and fact. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir.2006). BARKETT, Circuit Judge, concurring in part and dissenting in part: While I concur with the majority that the district court did not err in instructing the jury that there is no temporal requirement in 8 U.S.C. § 1327, I dissent because I believe the district court’s supplemental instruction on 8 U.S.C. § 1324(a)(l)(A)(iv) is per se reversible error. By defining “encourage” so generally to mean “help,” the district court rendered at least one other statutory subsection superfluous and also constructively amended the indictment. Jose Lopez drove the boat in which seventeen aliens were being smuggled into the United States. This conduct appears to violate another provision of the same statute, 8 U.S.C. § 1324(a)(2), which prohibits the knowing transportation of an alien who has not received prior official authorization to enter the United States. However, Lopez was not charged with violating this subsection. Rather, he was charged with violating § 1324(a)(l)(A)(iv), which prohibits the “encouragement” or “inducement” of an alien to come to the United States with the knowledge or reckless disregard of the fact that the alien’s entry into the United States is in violation of the law. The majority’s decision eschews the ordinary and common sense meaning of the word “encourage” in favor of the most general and least meaningful possible in terpretation, namely, “to help.” The majority reasons that one form of “help” is mere transportation. The majority’s" }, { "docid": "22582740", "title": "", "text": "(11th Cir.2006). In any event, 1324(a)(2) is violated only if the defendant acts with knowledge or reckless disregard of \"the fact that an alien has not received prior official authorization” to enter the United States, which is a different requirement than § 1324(a)(l)(A)(iv)’s lesser requirement that the alien be in violation of law for any reason. And as detailed throughout this opinion, Lopez's conduct was not merely piloting a boat as the dissent asserts. . Which isn't to say the conduct proven in this case might not also violate portions of Section 1324 other than what was charged. Lopez's argument seems to be that his conduct can only lawfully violate one subsection of a statute. Nothing in our precedent compels this conclusion. See United States v. Cespedes, 151 F.3d 1329, 1332 (11th Cir.1998) (\"Indeed, the federal courts have long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants.”) (internal quotation marks omitted). . Similar to the current version of Section 1324, the previous version of Section 1324 considered in the Hanna decision criminalized encouraging or inducing illegal aliens to enter the United States. The previous version of Section 1324 provided: (a) Any person, including the owner, operator, pilot, master, commanding officer, agent, or cosignee of any means of transportation who— (4) willfully or knowingly encourages or induces, or attempts to encourage or induce, either directly or indirectly, the entry into the United States of— any alien ... not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States under the terms of this chapter or any other law relating to the immigration or expulsion of aliens, shall be guilty of a felony.... 8 U.S.C. § 1324(a)(4) (1976 & Supp. IV 1981). . To say, as the dissent argues, that Lopez is being convicted of the mere act of driving a boat is to ignore the record in this case. . We also reject Lopez’s argument that the district court’s supplemental instruction constructively" }, { "docid": "22169961", "title": "", "text": "uncontradicted answer in § 2101(b) which refers to “one or more of the overt, acts described in subparagraph (A), (B), (C), or (D) of paragraph (1) of subsection (a). . . . ” Reading “overt act for any purpose specified” as equivalent to fulfillment of any purpose specified in (A)-(D) leaves the statute with an adequate relation between expression and action as described in the preceding step. The conclusion that the statute adequately establishes the required relation to action which can be made illegal disposes as well of defendants’ argument that the statute infringes on the fundamental constitutional right to travel. The existence of that relationship narrows the imposition on travel to instances adequately “involving a purpose which the government may counter. Aptheker v. Secretary of State, 378 U.S. 500, 511, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). We do not pretend to minimize the first amendment problems presented on the face of this statute. In one hypothetical application, the statute could result in punishment of one who, having traveled interstate, or used the mail, with intent to promote a riot, attempted to make a speech or circulate a handbill for the purpose of encouraging three people to riot. Arguably the statute does not require that the speech, if made, or the handbill, if circulated, succeed in any substantial degree in encouraging the audience to riot. Arguably a frustrated attempt to speak or circulate would not achieve the constitutionally essential relationship with action in any event. Arguably the statute does not require that a speech or handbill succeed in producing a riot or bringing the persons addressed to the brink of a riot, prevented only by some intervening and superseding force, and arguably no less degree of propelling of action by speech or handbill will suffice, even though intent to succeed must also be proved. Although we reject these arguments, in part as constructions of the statute, and in part as grounds for declaring it void, we acknowledge the case is close. There is an additional attack, based on a particular phrase in § 2102(b). The contention is that by" } ]

[ { "docid": "5163078", "title": "", "text": "MEMORANDUM OPINION MYRON H. THOMPSON, District Judge. In this action, a class of female police officers and two individual female officers charge that officials of the City of Montgomery, Alabama and its police department denied them promotions because of their sex, and that these officials retaliated against one of them for bringing such charges. Based on the evidence presented at a nonjury trial, the court concludes that the allegations of discrimination and retaliation have merit and that appropriate individual and class-wide relief is due. I. This action was originally brought in 1975 by Carolyn Jordan, who alleged sex discrimination in the hiring policies of the police department. Jordan sued various officials of the City of Montgomery and its police department. In response to the original filing, this court found that officials of the city and its police department had failed “to employ females on the same basis as males,” Memorandum Opinion of March 12, 1976, at 4, and the court ordered that city and police officials hire, assign, promote, and compensate all female police officers on an equal basis with male officers. Order of March 12, 1976. The court also broadly enjoined city and police officials “[fjrom engaging in any act or practice which has the purpose or effect of discriminating against any employee, any applicant, or any potential applicant for employment with the Montgomery Police Department because of the individual’s sex.” Id. The present phase of this lawsuit began in 1983 when a female police officer, Sandra M. Pierce, intervened to pursue her claims of sex discrimination, principally in promotion. She was later joined in 1984 by another female police officer, Joyce S. Oy-ler. On January 3,1985, the court certified this phase of the lawsuit as a class action with Pierce and Oyler as representatives of a class composed of “all past, present and future female police officers of the Montgomery police department, with regard to all employment practices except hiring.” Jordan v. Swindall, 105 F.R.D. 45, 46 (M.D.Ala.1985). Pierce and Oyler charge officials of the city and its police department with violations of Title VII of the Civil" } ]

[ { "docid": "19694319", "title": "", "text": "The evidence reflected that Wilson continues to prominently and officially signal his feelings about Pierce-Hanna and her lawsuit by displaying to the public on the walls of his office a framed copy of a public letter signed by female officers opposing the prosecution of Pierce-Hanna’s initial sex discrimination lawsuit against the department. As the court has explained before regarding this letter, “The message to all in the department who see the display or who hear about the display, is clear: that these female police officers whose names are listed in the advertisement are the ‘loyal favored,’ at least among the women in the department and, correlatively, that those female officers whose names are not listed are not among the favored.” Jordan v. Wilson, 667 F.Supp. at 778. Indeed, the evidence from earlier proceedings reflected that one of the department’s deputy chiefs stated matter-of-factly at a staff meeting that a certain female officer would never be promoted because she had failed to sign this letter. The deputy chief later testified that it was the common feeling of members of the department that anyone who did not sign the letter would be viewed as “throwing stones,” and as “not being in your corner.” United States v. City of Montgomery, 744 F.Supp. at 1082. 7. Lisenby This same deputy chief also threatened Officer Irma Lisenby just before she was to give testimony in these suits against the department, accusing her of having “jumped ship” and of being “no longer loyal to the police department or the administration.” United States v. City of Montgomery, 744 F.Supp. at 1082. The deputy chief warned her that she and her division would no longer enjoy the “favorable treatment” they had received in the past. Id. Moreover, when Chief Wilson learned of the threat, he took no action against the deputy chief. And in a similar vein, Mayor Folmar has expressed deep disappointment with Lisenby’s testimony in these two cases. He stated that she “led the charge for me against the sex discrimination [lawsuit],” but that, in light of her recent testimony in these cases, he no longer" }, { "docid": "19694307", "title": "", "text": "He “therefore always had a profound effect on how officers [were] rated by the police chief, his deputy, and the commanders; and Folmar’s promotion selections from the certifications ... usually reflected his own personal choices.” Id. In May 1987, the court approved and ordered implemented an interim plan for promotions in the Police Department. Because the department was subject to outstanding orders in a companion case prohibiting racial discrimination in hiring and promotions, United States v. City of Montgomery, civil action no. 3739-N, the relief also applied to this companion case. Under the plan, “if the mayor chooses to select a lower-ranked candidate over a higher-ranked candidate, even if all the candidates involved are women, he must state in writing his reasons for rejecting the higher-ranked candidate.” Jordan v. Wilson, 667 F.Supp. at 777. The female police officers are then given a period of time to challenge the objection as either sexually discriminatory or retaliatory. If an objection is made, “the mayor may not select the lower-ranked candidate unless and until the court rules in the mayor’s favor on the challenge.” Id. These provisions were based on findings that Mayor Folmar and others had engaged in a longstanding scheme against Pierce-Hanna and other female officers “to discourage [them] from pursuing discrimination claims and to retaliate against those who do.” Id. at 776. At the trial on Pierce-Hanna’s complaint in 1985, Chief Wilson, who was then only a major in the department, testified that, because Pierce-Hanna had brought a lawsuit against the department, he could not be objective in his assessment of her performance as an officer. Upon hearing Wilson’s testimony, the department’s then-Chief of Police prohibited Wilson from having any future input into the required periodic departmental evaluations of Pierce-Hanna. Later, in January 1987, based on Wilson’s testimony, the court approved a decree, submitted by counsel for Pierce-Hanna and for the defendants, which provided, among other things, that “the current Chief of Police, John Wilson, will not be involved in any selection process in which Pierce-Hanna has applied for promotion.” Jordan v. Wilson, civil action no. 75-19-N at p. 2" }, { "docid": "4052338", "title": "", "text": "MEMORANDUM OPINION MYRON H. THOMPSON, Chief Judge. This litigation consists of two class-action lawsuits: Sims v. Montgomery County Comm’n, civE action no. 3708-N (M.DAla.), and Williams v. Montgomery County Sheriff’s Dept., civil action no. 82-T-717-N (M.D.Ala.). In 1972 in Sims, a class of African-American employees sought reHef from the Montgomery County Sheriffs Department’s racially discriminatory employment practices, and, ten years later in 1982 in Williams, a class of female employees and appheants for employment charged the department with sex discrimination. The defendants include the foEowing: the Montgomery County Sheriffs Department, its sheriff, its chief deputy, its jaE administrator, and its assistant jaE administrator; the Montgomery County Commission and its commissioners; and the Montgomery City-County Personnel Board. In a memorandum opinion entered in these two cases on November 27, 1990, the court found that the department had continued to discriminate on the bases of race and sex against its officers, in violation of the equal protection clause of the fourteenth amendment to the United States Constitution, as enforced through 42 U.S.C.A. § 1983, and in violation of Title VII of the CivE Rights Act of 1964, as amended and codified at 42 U.S.C.A. §§ 1981a, 2000e through 2000e-17. Sims v. Montgomery County Comm’n, 766 F.Supp. 1052 (M.D.Ala.1990). In an accompanying judgment and injunction, the court required, among other things, that the department develop and implement new, nondiscriminatory permanent promotion procedures. Civil action nos. 3708-N & 82-T-717-N (M.D.Ala. Nov. 27, 1990). On October 20, 1994, in settlement of this litigation, all parties except the “Dodson in-tervenors” (who represent white officers in the department) joined in a motion for approval of a permanent promotion plan for the ranks of sergeant, lieutenant, and captain in both the law enforcement and corrections divisions of the department. The defendants requested that the court move with dispatch because the proposed plan had a beginning date of January 1, 1995. On December 7, 1994, after giving public notice of the proposed plan and holding two fairness hearings pursuant to Rule 23(e) of the Federal Rules of Civil Procedure and 42 U.S.C.A. § 2000e-2(n)(l), the court entered an order" }, { "docid": "16676520", "title": "", "text": "the police department’s promotion practices violated both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983. The district court also concluded that Pierce suffered “impermissible retaliation” as a result of her pursuit of the sex discrimination claims against the department. 649 F.Supp. 1038, 1062 (M.D. Ala.1986). On November 25, 1986, the court issued an injunction prohibiting the mayor, police chief and all officers within the police department from “in any way retaliating against ... Pierce or any other persons for bringing charges of sex discrimination against the City of Montgomery Police Department.” Id. at 1064. The injunction also directed the appellants to “give ... Pierce ... such respect, support and encouragement as is given all other officers in the police department.” Id. No appeal was taken from these orders. Pursuant to an agreement of the parties, the district court entered another order on January 14, 1987, which granted Pierce relief from the discrimination previously found by the court in the order of November 17, 1986. As a part of the remedy, Pierce received a promotion to captain, retroactive to 1983, and back pay. The day after the district court entered this consent order, Mayor Folmar was asked by a television reporter if he thought Pierce was qualified to serve as a captain. He replied, “No, I don’t think she’s qualified to be a captain ... the only person who thinks she’s qualified to be a captain is Judge Thompson, and he has no responsibility for her actions.” In response to a similar question the police chief remarked, “Who is going to be responsible for her misjudgments and actions? Is it going to be Judge Thompson? No. It will be me. I will be legally responsible for what she does.... If we sneeze in front of her, she’ll be back in federal court.” On January 16, 1987 Pierce filed a motion for civil contempt against Mayor Fol-mar and Chief Wilson for violating the injunction of November 25, 1986. After a hearing, the district court determined that these remarks by the" }, { "docid": "4404911", "title": "", "text": "MEMORANDUM OPINION MYRON H. THOMPSON, Chief Judge. In these two longstanding class-action lawsuits, two groups of officers in the Montgomery County Sheriff’s Department charge that the department has again illegally discriminated against them because of their sex and race. In Johnson v. Montgomery County Sheriffs Department, Civil Action No. 82-717-N, Lois Johnson charges on behalf of herself and a class of female officers (the “Johnson class”) that the department has continued to discriminate against them because of their sex. In Sims v. Montgomery County Commission, Civil Action No. 3708-N, W.T. Scott and three other named plaintiffs charge on behalf of themselves and a class of African-American officers (the “Scott class”) that the department has continued to discriminate against them because of their race. The Johnson and Scott classes rest their claims on a number of legal bases: the prior orders of the court; Title VII of the Civil Rights Act of 1964, as amended and codified at 42 U.S.C.A. §§ 2000e through 2000e-17; and the fourteenth amendment to the United States Constitution as enforced through 42 U.S. C.A. § 1983. The Johnson and Scott classes have satisfied Title VII’s requirement that they exhaust their administrative remedies before the Equal Employment Opportunity Commission (the “EEOC”). Based on the evidence presented at a nonjury trial spanning over a three-month period, the court concludes that most of the claims of race and sex discrimination have merit and that, accordingly, appropriate individual and class-wide relief is due. I. THE JOHNSON LITIGATION The Johnson class presents a number of different sex discrimination claims against the Montgomery County Sheriffs Depart ment. The claims can be grouped as follows: first, class claims that departmental officials assign officers to jobs and shifts based on the officers’ sex; second, class claims that male officers in the department have sexually harassed female officers; and, third, individual claims that departmental officials have retaliated against two female officers, Sallie Williams and Johnie Love, because of their participation in this litigation. However, before discussing these claims, the court will give some background information. A. Background The Montgomery County Sheriff’s Department is divided in" }, { "docid": "5163143", "title": "", "text": "discrimination, and the court is convinced that there is a strong probability of further retaliation against her. Since there is not already outstanding in this lawsuit an injunction banning such retaliation, the court is now compelled to issue such an injunction. See Lewis v. Smith, supra. The injunction will prohibit officials of the City of Montgomery and its police department from retaliating against Pierce and any other person who files a charge of sex discrimination, and the injunction will require that these officials give Pierce, in whatever departmental position she may hold now and in the future, the same respect, support and encouragement given to all other officers. The court is of the opinion that this injunction should reach not only the present defendants in this lawsuit — that is, the mayor and police chief — but also all majors, captains, lieutenants, sergeants, corporals, and investigators in the police department, and anyone else who receives notice of the injunction. See Fed.R.Civ.P. 65(d). Thus, virtually any member of the department who violates the injunction will be subject to punishment for both civil and criminal contempt. In accordance with the memorandum opinion entered on November 17, 1986, it is therefore the ORDER, JUDGMENT, and DECREE of the court: (1) That the Mayor of the City of Montgomery, the Chief and Deputy Chief of Police of the City of Montgomery Police Department, all majors, captains, lieutenants, sergeants, corporals, and investigators within the police department, and their agents, servants, employees, and those persons in active concert or participation with them who receive actual notice of this order and injunction by personal service or otherwise, are each ENJOINED and RESTRAINED as follows: (a) from in any way retaliating against plaintiff-intervenor Sandra M. Pierce or any other person for bringing charges of sex discrimination against the City of Montgomery Police Department; and (b) from failing to give plaintiff-inter-venor Pierce, in whatever departmental position she may hold now and in the future, such respect, support and encouragement as is given all other officers in the police department; (2) That the U.S. Marshall is DIRECTED to serve personally" }, { "docid": "5163140", "title": "", "text": "appropriate judgment will be entered. JUDGMENT AND INJUNCTION In accordance with the memorandum opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the court: (1) That judgment be and it is hereby entered in favor of plaintiff-intervenors Sandra M. Pierce and Joyce S. Oyler, individually and on behalf of the class they represent, and against the defendants; (2) That the defendants are ENJOINED and RESTRAINED from failing to restructure the promotion system of the City of Montgomery Police Department so that the system does not discriminate against female police officers; (3) That the defendants are ENJOINED and RESTRAINED from making any promotions, other than temporary ones, to the positions of police chief, deputy chief, major, captain, lieutenant, and sergeant in the City of Montgomery Police Department, until further order of the court; (4) That the defendants are ENJOINED and RESTRAINED from failing to give the plaintiff-intervenors and the plaintiff class they represent such individual remedial relief as may be appropriate; (5) That counsel for all parties are DIRECTED to meet with each other within 21 days from the date of this judgment to attempt to resolve all, or as many as possible, of the issues raised by the following: (a) Restructuring the promotion system of the City of Montgomery Police Department; and (b) Individual remedial relief for the plaintiff-intervenors and the members of the class they represent; (6) That plaintiff-intervenors Sandra M. Pierce and Joyce S. Oyler are allowed 28 days from the date of this judgment to file a request for the court to resolve those issues raised in paragraph 5 that the parties are unable to resolve among themselves; and (7) That the plaintiff-intervenors are allowed 28 days from the date of this judgment to file their request for attorney fees and expenses, which request should address each of the criteria set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). ORDER AND INJUNCTION On November 17, 1986, this court issued a memorandum opinion finding that officials of the City of Montgomery and its police department had engaged in a pattern" }, { "docid": "5163141", "title": "", "text": "other within 21 days from the date of this judgment to attempt to resolve all, or as many as possible, of the issues raised by the following: (a) Restructuring the promotion system of the City of Montgomery Police Department; and (b) Individual remedial relief for the plaintiff-intervenors and the members of the class they represent; (6) That plaintiff-intervenors Sandra M. Pierce and Joyce S. Oyler are allowed 28 days from the date of this judgment to file a request for the court to resolve those issues raised in paragraph 5 that the parties are unable to resolve among themselves; and (7) That the plaintiff-intervenors are allowed 28 days from the date of this judgment to file their request for attorney fees and expenses, which request should address each of the criteria set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). ORDER AND INJUNCTION On November 17, 1986, this court issued a memorandum opinion finding that officials of the City of Montgomery and its police department had engaged in a pattern and practice of denying promotions to women merely because they are women. The court also found that these officials retaliated against plaintiff-intervenor Sandra M. Pierce for bringing the charges of sex discrimination that led to the court’s findings. In Lewis v. Smith, 731 F.2d 1535, 1540 (11th Cir.1984), the Eleventh Circuit Court of Appeals instructed district courts that, where there is abundant evidence of consistent past discrimination, injunctive relief prohibiting such discrimination is mandatory absent clear and convincing proof that there is no reasonable probability of further noncompliance with the law. This court sees no need now to issue a broad injunction prohibiting officials of the city and its police department from discriminating against women because such an injunction was already issued by this court at the end of the first phase of this lawsuit, on March 12, 1976, and that injunction is still in full force and effect. The evidence at trial was also abundant that city and police officials have repeatedly engaged in retaliation against plaintiff-intervenor Pierce for having brought charges of sex" }, { "docid": "5163139", "title": "", "text": "as soon as it becomes effective. B. The court will also give the parties an opportunity to agree upon backpay, front-pay, retroactive promotions, changes in promotion ratings, and other remedial benefits for Pierce and Oyler. If the parties are unable to agree on such, the court will then fashion such relief. The court will also allow the parties an opportunity to agree upon appropriate individual relief for all other class members. If the parties are unable to agree to such relief or if the court declines to approve any such agreement under Fed.R.Civ.P. 23(e), the court will then fashion a procedure to determine which class members are entitled to relief and to what individual relief they are entitled. Finally, the court will award counsel for Pierce and Oyler reasonable attorney fees and expenses for this phase of the litigation, 42 U.S.C.A. §§ 1988, 2000e-5(k). Any fee and expense request filed by Pierce and Oyler should address each of the criteria set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). An appropriate judgment will be entered. JUDGMENT AND INJUNCTION In accordance with the memorandum opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the court: (1) That judgment be and it is hereby entered in favor of plaintiff-intervenors Sandra M. Pierce and Joyce S. Oyler, individually and on behalf of the class they represent, and against the defendants; (2) That the defendants are ENJOINED and RESTRAINED from failing to restructure the promotion system of the City of Montgomery Police Department so that the system does not discriminate against female police officers; (3) That the defendants are ENJOINED and RESTRAINED from making any promotions, other than temporary ones, to the positions of police chief, deputy chief, major, captain, lieutenant, and sergeant in the City of Montgomery Police Department, until further order of the court; (4) That the defendants are ENJOINED and RESTRAINED from failing to give the plaintiff-intervenors and the plaintiff class they represent such individual remedial relief as may be appropriate; (5) That counsel for all parties are DIRECTED to meet with each" }, { "docid": "5163108", "title": "", "text": "at 1386. The promotion process in the City of Montgomery Police Department is nearly identical to that described in Crawford, except that the Crawford system at least had a nominal review procedure and the police department here does keep on record the semi-annual efficiency reports filed by officers’ immediate supervisors; in addition, of course, rather than whites evaluating blacks, men evaluate women. Like the court in Crawford, this court concludes that there has been no showing of business necessity. The court therefore finds that, in light of the promotion system’s discriminatory impact on women, the system violates Title VII. IV. The second claim in this lawsuit is based on disparate treatment; the claim is that, in violation of Title VII and section 1983, officials of the City of Montgomery and its police department have engaged in a pattern or practice of intentional discrimination in promotions against female officers, including Pierce and Oyler. In International Brotherhood of Teamsters, the Supreme Court explained that in order to prove a system-wide pattern or practice of discrimination, the employee “ultimately had to prove more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts. [The employee] had to establish by a preponderance of the evidence that racial discrimination was the company’s standard operating procedure — the regular rather than the unusual practice.” 431 U.S. at 336, 97 S.Ct. at 1855. The evidence here firmly establishes that officials of the City of Montgomery and its police department have engaged in a pattern and practice of discrimi-natorily denying promotions to Pierce and Oyler and other female officers. Indeed, the evidence that follows reflects that sexism in the police department is widespread and deep-rooted, and has routinely infected the decisions of virtually all administrators and supervisors, including the mayor, the police chief, his deputy, and the division commanders. A. An employee may establish a pattern and practice of sex discrimination by anecdotal evidence, by showing a pattern and practice of individual instances of discrimination. Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1143 (11th Cir.1983). Pierce and Oyler have established such a pattern and" }, { "docid": "5163144", "title": "", "text": "subject to punishment for both civil and criminal contempt. In accordance with the memorandum opinion entered on November 17, 1986, it is therefore the ORDER, JUDGMENT, and DECREE of the court: (1) That the Mayor of the City of Montgomery, the Chief and Deputy Chief of Police of the City of Montgomery Police Department, all majors, captains, lieutenants, sergeants, corporals, and investigators within the police department, and their agents, servants, employees, and those persons in active concert or participation with them who receive actual notice of this order and injunction by personal service or otherwise, are each ENJOINED and RESTRAINED as follows: (a) from in any way retaliating against plaintiff-intervenor Sandra M. Pierce or any other person for bringing charges of sex discrimination against the City of Montgomery Police Department; and (b) from failing to give plaintiff-inter-venor Pierce, in whatever departmental position she may hold now and in the future, such respect, support and encouragement as is given all other officers in the police department; (2) That the U.S. Marshall is DIRECTED to serve personally a copy of this order and injunction on the Mayor of the City of Montgomery, the Chief and Deputy Chief of Police of the City of Montgomery Police Department and on all majors within the police department; and (3) That the Chief of Police of the City of Montgomery Police Department is DIRECTED to furnish forthwith notice of this order and injunction to all captains, lieutenants, sergeants, corporals, and investigators within the police department. . John Wilson was substituted as a defendant for Charles Swindall, former police chief, when Wilson temporarily assumed the position of police chief in January 1986. . Pierce and Oyler also claim that city and police officials violated the March 12, 1976 order. However, because the reach of Title VII and section 1983 is, at least, as far as the March 12 order, the court does not consider the March 12 order separately. . The evidence is and the parties agree that the challenged promotion process is subjective. Subjective selection and promotion procedures may be attacked under the disparate impact theory." }, { "docid": "19694311", "title": "", "text": "and injunction making final its earlier preliminary finding of retaliation against Pierce-Hanna and the other three officers. The court concluded that “Wilson intended to choose only someone for deputy chief who had not in the past participated in lawsuits challenging the employment practices of the police department.” United States v. the City of Montgomery, 744 F.Supp. 1074, 1080-81 (M.D.Ala.1989). The court continued its injunction against the appointment of Owens and continued its requirement that Mayor Folmar and Chief Wilson develop an interim plan for selection of deputy chief. Id. at 1088. The defendants appealed, and the Eleventh Circuit Court of Appeals affirmed the court’s final injunction. United States v. City of Montgomery, 911 F.2d 741 (11th Cir.1990) (table). 3. Pierce-Hanna In August 1990, after the Eleventh Circuit had affirmed the final order requiring that the defendants establish new procedures for selecting a new deputy chief, this court approved and adopted an interim selection plan. United States v. City of Montgomery, civil action nos. 3739-N and 75-19-N (M.D.Ala. August 2, 1990). The plan was substantially parallel to the court-ordered interim-promotion plan previously adopted for ranks below that of deputy chief, with the exception that its reach was expanded to allow black officers as well as female officers to seek immediate court relief should the defendants discriminate or retaliate against them. Paragraph 7 of the deputy-chief plan provided that, “If the mayor passes over a higher-ranked candidate for a lower-ranked candidate, he must state his reasons for doing so in writing.” The female police officers and the black police officers were then given a period of time to challenge the rejection as either sexually or racially discriminatory or retaliatory. Paragraph 7 further provided that, if there is a challenge to a selection, “the mayor may not select the lower-ranked candidate unless and until the court rules in the mayor’s favor on the challenge.” In the spring of 1991, after almost another year without activity, Pierce-Hanna complained to the court on behalf of the class of female officers that Mayor Folmar and Chief Wilson were intentionally delaying implementation of the interim plan in" }, { "docid": "19694300", "title": "", "text": "MEMORANDUM OPINION MYRON H. THOMPSON, Chief Judge. Plaintiffs David Green and Jerry Han-kins, two police officers with the Montgomery City Police Department, have brought this class-action lawsuit charging the defendants — Mayor Emory Folmar, Police Chief John Wilson, and the City of Montgomery, Alabama — with violation of rights given and protected under the first and fourteenth amendments to the United States Constitution as enforced through 42 U.S.C.A. § 1983 (West 1981). Green and Hankins claim that the defendants have subjected them and other officers to a variety of adverse employment actions, including disadvantageous transfers and assignments, unwarranted discipline, and denial of promotions, because of their speech, associational activities, ■ and participation in litigation against defendants. They are pursuing claims on behalf of 15 persons— their own claims and the individual claims of 13 other class members — as well as a broad class-wide claim that Folmar and Wilson have engaged in a “pattern and practice” of retaliation against officers for exercising their first-amendment freedoms. They have invoked the jurisdiction of the court pursuant to 28 U.S.C.A. §§ 1331 (West Supp.1991) and 1343 (West Supp. 1991). The court has certified a plaintiff class of all past, present, and future Mont gomery Police Department employees as of January 9, 1984. Based on trial evidence that included over 40 witnesses and a mound of documentary evidence several feet in height, the court concludes that one police officer is entitled to full relief, that one officer is entitled to partial relief, that whether two officers are entitled to any relief cannot be determined from the present record, and that the remaining eleven officers are not entitled to any relief. The court further concludes that the plaintiff class is entitled to recover on only the narrow claim that defendants have retaliated against its members for taking part in lawsuits unfavorable to or critical of Folmar’s or Wilson’s policies and decisions in the area of police employment. I. BACKGROUND It is somewhat of an understatement to say that the court does not write on a clean slate in considering Green and Hankins’s first-amendment claims against" }, { "docid": "19694302", "title": "", "text": "Folmar and Wilson. Since the early 1980’s, city and police department officials have been the frequent target of successful retaliation challenges brought by police officers, principally under the headings of three cases: Jordan v. Wilson, civil action no. 75-19-N; United States v. City of Montgomery, civil action no. 3739-N; and Eiland v. City of Montgomery, civil action no. 84-T-120-N. Because the acts of retaliation addressed in these cases were committed by, or at the instigation of, Folmar or Wilson and because most of the claims asserted by the plaintiffs are either directly or indirectly factually related to these cases, any fair consideration of the plaintiffs’ claims must begin with these three cases. A. Jordan v. Wilson and United States v. City of Montgomery 1. Pierce-Hanna In 1986, in response to a complaint filed in Jordan v. Wilson, civil action no. 75-19-N, by Sandra Pierce-Hanna on behalf of herself and other female officers in the Montgomery Police Department, the court held that the department had systematically and intentionally discriminated against female officers in promotions, in violation of Title VII of the Civil Rights Act of 1964, as amended, and the equal protection clause of the fourteenth amendment as enforced through § 1983. Jordan v. Wilson, 649 F.Supp. 1038 (M.D.Ala.1986). The court found that “discriminating against women because they are women was and remains the ‘standard operating procedure’ within the City of Montgomery Police Department.” Id. at 1058. The court ordered the department to develop new promotion procedures. Id. at 1063. The court also found that Mayor Folmar had “concocted a department-wide scheme to discredit and embarrass ... Pierce[Hanna] for having initiated the charges.” Jordan v. Wilson, 667 F.Supp. 772, 776 (M.D.Ala.1987). As later capsulized by the court, the evidence relied upon in reaching this finding was as follows: “Receiving their cue from the mayor, Pierce[-Hanna]’s supervisors suddenly began to give her extremely poor ratings, with the result that her ranking on .the promotion register dropped precipitously and dramatically. The scheme was thus not subtle and hidden, but open, obvious and widespread so that everyone in the department could see that the" }, { "docid": "19694301", "title": "", "text": "28 U.S.C.A. §§ 1331 (West Supp.1991) and 1343 (West Supp. 1991). The court has certified a plaintiff class of all past, present, and future Mont gomery Police Department employees as of January 9, 1984. Based on trial evidence that included over 40 witnesses and a mound of documentary evidence several feet in height, the court concludes that one police officer is entitled to full relief, that one officer is entitled to partial relief, that whether two officers are entitled to any relief cannot be determined from the present record, and that the remaining eleven officers are not entitled to any relief. The court further concludes that the plaintiff class is entitled to recover on only the narrow claim that defendants have retaliated against its members for taking part in lawsuits unfavorable to or critical of Folmar’s or Wilson’s policies and decisions in the area of police employment. I. BACKGROUND It is somewhat of an understatement to say that the court does not write on a clean slate in considering Green and Hankins’s first-amendment claims against Folmar and Wilson. Since the early 1980’s, city and police department officials have been the frequent target of successful retaliation challenges brought by police officers, principally under the headings of three cases: Jordan v. Wilson, civil action no. 75-19-N; United States v. City of Montgomery, civil action no. 3739-N; and Eiland v. City of Montgomery, civil action no. 84-T-120-N. Because the acts of retaliation addressed in these cases were committed by, or at the instigation of, Folmar or Wilson and because most of the claims asserted by the plaintiffs are either directly or indirectly factually related to these cases, any fair consideration of the plaintiffs’ claims must begin with these three cases. A. Jordan v. Wilson and United States v. City of Montgomery 1. Pierce-Hanna In 1986, in response to a complaint filed in Jordan v. Wilson, civil action no. 75-19-N, by Sandra Pierce-Hanna on behalf of herself and other female officers in the Montgomery Police Department, the court held that the department had systematically and intentionally discriminated against female officers in promotions, in violation" }, { "docid": "19694303", "title": "", "text": "of Title VII of the Civil Rights Act of 1964, as amended, and the equal protection clause of the fourteenth amendment as enforced through § 1983. Jordan v. Wilson, 649 F.Supp. 1038 (M.D.Ala.1986). The court found that “discriminating against women because they are women was and remains the ‘standard operating procedure’ within the City of Montgomery Police Department.” Id. at 1058. The court ordered the department to develop new promotion procedures. Id. at 1063. The court also found that Mayor Folmar had “concocted a department-wide scheme to discredit and embarrass ... Pierce[Hanna] for having initiated the charges.” Jordan v. Wilson, 667 F.Supp. 772, 776 (M.D.Ala.1987). As later capsulized by the court, the evidence relied upon in reaching this finding was as follows: “Receiving their cue from the mayor, Pierce[-Hanna]’s supervisors suddenly began to give her extremely poor ratings, with the result that her ranking on .the promotion register dropped precipitously and dramatically. The scheme was thus not subtle and hidden, but open, obvious and widespread so that everyone in the department could see that the penalty for ‘disloyalty’ was very great. It was based on open intimidation and had a two-fold purpose: first to punish Pierce-[Hanna] and force her out of the department; and second, to force others in the department to join the mayor in his vendetta against Pierce[-Hanna] and in his opposition to her lawsuit. “The scheme, however, also had an element of reward to it. On one occasion the mayor rewarded two female officers for supporting him against Pierce[-Hanna], by promoting them while rejecting Pierce[-Hanna].” Id. (citation omitted). Because “there [was] a strong probability of further retaliation” and because an injunction banning retaliation was not already outstanding, the court issued an order prohibiting Mayor Folmar and all police officials from retaliating against persons in the department and, in particular, from retaliating against Pierce-Hanna. Jordan v. Wilson, 649 F.Supp. at 1064. At the time of this litigation, the promotion process in the Police Department was not based on objective standards of performance, but rather essentially reflected the personal choices of Folmar. The department ranked its law-enforcement personnel as" }, { "docid": "20944631", "title": "", "text": "MEMORANDUM OPINION MYRON H. THOMPSON, District Judge. On December 23,1987, this court entered an order in one of these two consolidated cases, civil action no. 3739-N, appointing Hon. Donald V. Watkins, an attorney, to represent the interest of black police officers of the City of Montgomery, Alabama in the court-ordered process of developing and implementing a new promotion system for the city’s police department. Under the order, the city is responsible for Watkins’s “reasonable and necessary fees and expenses.” Because the city had previously indicated that it objected to the appointment of anyone, the court in that order also informed the parties that it would later issue a memorandum opinion and further order addressing what the legal basis for the appointment is and setting forth in more detail what Watkins’s duties are. Since the issuance of the December 23 order, the city has withdrawn its objection. Even though all parties now agree to the appointment, or at least have no objection to it, the court still feels compelled to issue the memorandum opinion promised. It is still necessary to define what Watkins’s duties are, and to do that the court must in some measure also articulate the basis for Watkins’s appointment. I. These two cases have a long and fairly complicated history. In June 1972, Dr. and Mrs. E.L. Smiley along with Phillip Paradise filed a class action lawsuit, civil action no. 3708-N, charging that the hiring and promotion procedures used by the Police Department of the City of Montgomery discriminated against black persons. Two months later, in August 1972, the Attorney General of the United States, on behalf of the United States of America, filed another lawsuit, civil action no. 3739-N, charging similar racial discrimination in employment. On August 10, 1972, the two cases were consolidated. Together the lawsuits were premised on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e through 2000e-17; the fourteenth amendment to the Constitution of the United States; and 42 U.S.C.A. §§ 1981, 1983, 1985(3). In October 1972, the court entered an order approving a plan, submitted by" }, { "docid": "5163142", "title": "", "text": "and practice of denying promotions to women merely because they are women. The court also found that these officials retaliated against plaintiff-intervenor Sandra M. Pierce for bringing the charges of sex discrimination that led to the court’s findings. In Lewis v. Smith, 731 F.2d 1535, 1540 (11th Cir.1984), the Eleventh Circuit Court of Appeals instructed district courts that, where there is abundant evidence of consistent past discrimination, injunctive relief prohibiting such discrimination is mandatory absent clear and convincing proof that there is no reasonable probability of further noncompliance with the law. This court sees no need now to issue a broad injunction prohibiting officials of the city and its police department from discriminating against women because such an injunction was already issued by this court at the end of the first phase of this lawsuit, on March 12, 1976, and that injunction is still in full force and effect. The evidence at trial was also abundant that city and police officials have repeatedly engaged in retaliation against plaintiff-intervenor Pierce for having brought charges of sex discrimination, and the court is convinced that there is a strong probability of further retaliation against her. Since there is not already outstanding in this lawsuit an injunction banning such retaliation, the court is now compelled to issue such an injunction. See Lewis v. Smith, supra. The injunction will prohibit officials of the City of Montgomery and its police department from retaliating against Pierce and any other person who files a charge of sex discrimination, and the injunction will require that these officials give Pierce, in whatever departmental position she may hold now and in the future, the same respect, support and encouragement given to all other officers. The court is of the opinion that this injunction should reach not only the present defendants in this lawsuit — that is, the mayor and police chief — but also all majors, captains, lieutenants, sergeants, corporals, and investigators in the police department, and anyone else who receives notice of the injunction. See Fed.R.Civ.P. 65(d). Thus, virtually any member of the department who violates the injunction will be" }, { "docid": "16676519", "title": "", "text": "PER CURIAM: John Wilson, the Chief of the Montgomery, Alabama Police Department, and Emory Folmar, the Mayor of the city of Montgomery, appeal the order of the United States District Court for the Middle District of Alabama finding them in civil contempt in a case growing out of charges of sex discrimination. We reverse. This appeal adds another chapter to a saga that commenced over a decade ago. This case began in 1975 when Carolyn Jordan, representing a class of female police officer applicants, brought an action alleging sex discrimination in the hiring practices and policies of the Montgomery Police Department. In 1976, the district court found in favor of Jordan and the class and ordered the city and police officials to hire, assign, promote and compensate female and male police officers on an equal basis. In 1983, Sandra M. Pierce intervened and claimed, inter alia, that the department practiced discrimination on the basis of sex in its promotion policies. Again, the district court agreed and, in an order dated November 17, 1986, held that the police department’s promotion practices violated both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983. The district court also concluded that Pierce suffered “impermissible retaliation” as a result of her pursuit of the sex discrimination claims against the department. 649 F.Supp. 1038, 1062 (M.D. Ala.1986). On November 25, 1986, the court issued an injunction prohibiting the mayor, police chief and all officers within the police department from “in any way retaliating against ... Pierce or any other persons for bringing charges of sex discrimination against the City of Montgomery Police Department.” Id. at 1064. The injunction also directed the appellants to “give ... Pierce ... such respect, support and encouragement as is given all other officers in the police department.” Id. No appeal was taken from these orders. Pursuant to an agreement of the parties, the district court entered another order on January 14, 1987, which granted Pierce relief from the discrimination previously found by the court in the order of November 17," }, { "docid": "14135187", "title": "", "text": "FEINBERG, Circuit Judge: This class action by two former female police officers of the New York City Police Department raises important questions as to the effect of a facially neutral seniority system on enforcement of the national policy against sex discrimination. Faced with notice of layoff because of New York City’s well-publicized fiscal problems, plaintiffs brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and under 42 U.S.C. § 1983 and the fourteenth amendment against the City of New York, its Mayor and its Police Commissioner. The gist of the complaint was that since the threatened layoffs were based on seniority, they were sex-discriminatory because women had been prevented from obtaining the seniority necessary to avoid layoff by defendants’ unlawful discrimination against them in the past. Judge Kevin T. Duffy of the United States District Court for the Southern District of New York denied plaintiffs’ motion'for a preliminary injunction and dismissed the complaint; the judge also refused permission to amend the complaint. In their appeal to this court, plaintiffs are supported by the Equal Employment Opportunity Commission as amicus curiae. For reasons set forth below, we reverse the order of the district court and remand for further proceedings. I The facts are simple and, for purposes of this appeal, undisputed. Appellants Beraldine L. Acha and Arlene M. Egan represent a class of 371 female officers who were laid off on June 30, 1975. Before 1973, women were hired by the Police Department only for the job title Policewoman, for which there was an official quota amounting to 1.34 per cent of the total number of police officers. At the end of 1972, there were 355 Policewomen positions as compared to more than 26,000 Patrolmen. From 1964 to 1969, only two examinations for Policewoman were given, while many more examinations were offered for men applying to be Patrolmen.' From 1969 to 1973, a hiring freeze applied to both Patrolman and Policewoman positions, but men could apparently be promoted to Patrolman from the position of Police Trainee, which was not open to women." } ]

[ { "docid": "22636860", "title": "", "text": "that for triers of fact totally to reject an opposed view impeaches neither their impartiality nor the propriety of their conclusions. We said, “We are constrained to reject the court’s conclusion that an objective finder of fact could not resolve all factual conflicts arising in a legal proceeding in favor of one litigant. The ordinary lawsuit, civil or criminal, normally depends for its resolution on which version of the facts in dispute is accepted by the trier of fact. . . .” Labor Board v. Pittsburgh Steamship Co., 337 U. S. 656, 659. Rule 52, Federal Rules of Civil Procedure, provides, among other things: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Findings as to the design, motive and intent with which men act depend peculiarly upon the credit given to witnesses by those who see and hear them. If defendants’ witnesses spoke the truth, the findings are admittedly justified. The trial court listened to and observed the officers who had made the records from which the Government would draw an inference of guilt and concluded that they bear a different meaning from that for which the Government contends. It ought to be unnecessary to say that Rule 52 applies to appeals by the Government as well as to those by other litigants. There is no exception which permits it, even in an antitrust case, to come to this Court for what virtually amounts to a trial de novo on the record of such findings as intent, motive and design. While, of course, it would be our duty to correct clear error, even in findings of fact, the Government has failed to establish any greater grievance here than it might have in any case where the evidence would support a conclusion either way but where the trial court has decided it to weigh more heavily for the defendants. Such a choice between two permissible views of the weight of evidence is not “clearly erroneous.” Judgment affirmed." } ]

[ { "docid": "22365963", "title": "", "text": "assistance, and subsequently improved their test scores and advanced into higher paying jobs.” . Many of the employees in the class of plaintiffs, here, are members of the Equal Employment Opportunity Committee. This was a committee formed by a majority af black employees of the company in 1965. And 718 charges from class members have been filed with the Equal Employment Opportunity Commission. . This is the third time in five years that the plaintiffs have been before us. . Of. Ochoa v. Monsanto Company, supra, 473 F.2d at 320 (“But the smallness of the numbers demonstrates that the Court was not compelled to allow such statistical showing to set in train the usual presumptions or to make a finding of preference thereon.”). . In reviewing the trial court’s determination, we are bound by the standard of Buie 52(a) of the Federal Buies of Civil Procedure: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Although Judge Learned Hand was correct in stating, “It is idle to try to define the meaning of the phrase ‘clearly erroneous,’ ” (United States v. Aluminum Co., 148 F.2d 416, 433 (2d Cir. 1945)) this Court aptly phrased a workable formula in Chaney v. City of Galveston, 368 F.2d 774 (5th Cir. 1966): “ . . . A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been .committed. . . . It is well settled that in order for a reviewing court to set aside findings of fact by a trial court sitting without a jury, it must be clearly demon-strafed that such findings are without adequate evidentiary support in the record, or were induced by an erroneous view of the law, and the burden of showing that the findings are clearly erroneous is on the one attacking them.” Id. at 776. See United States v. United States Gypsum" }, { "docid": "14787333", "title": "", "text": "11, 1982 constitutes a finding of fact pursuant to Fed.R.Civ.P. 52(a), which states, “[fjindings of fact ... shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” A district court’s finding is deemed clearly erroneous on review only if, after reviewing the entire record, the appellate court “is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). The Supreme Court recently observed that “[w]hen findings are based on determinations regarding the credibility of witnesses, Rule 52 demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.” Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). The Court conceded that courts of appeals can find clear error, even in findings based on credibility determinations, in instances where documents or objective evidence contradict testimony or when a witness’ story is so internally inconsistent or implausible that it would not be believed by a reason able factfinder. Id. 105 S.Ct. at 1512-13. The Court also stated, however, that clear error can “virtually never” be found “when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence ... [and is] not internally inconsistent____” Id. at 1513. With regard to the burden of establishing clear error, this Circuit has stated “[i]t is the appellant who must shoulder the burden of proving such a mistake ... and this burden is not met merely by demonstrating a conflict in the testimony ... nor by seeking to redetermine the credibility of witnesses.” Sawyer v. Arum, 690 F.2d 590, 592 (6th Cir.1982)" }, { "docid": "5463304", "title": "", "text": "and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Under our interpretation of Rule 52(a), a finding of fact is “clearly erroneous” if it leaves us with the “definite and firm conviction that a mistake has been committed.” Chaney v. City of Galveston, 5 Cir. 1966, 368 F.2d 774, 776; B. H. Bunn Co. v. AAA Replacement Parts Co., 5 Cir. 1971, 451 F.2d 1254, 1260. See also United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766. We have no such conviction in this case. Indeed, accepting the evaluations of witness credibility made by him, as we must, we find the factual conclusions he reached to be correct. The trial judge’s ruling excluding plaintiff’s Exhibit 1 (an Ohio determination that Mr. King was entitled to unemployment benefits) was also correct. This was a state, not a federal, record, cf. 28 U.S.C. § 1733, and it was not properly authenticated. 28 U.S.C. § 1738. We are unable to evaluate the argument concerning the admissibility of a consent decree in another case, which was rejected by the trial judge; the record does not show that a copy of this decree was ever offered in evidence, nor is a copy included in the record. In any event, the description of the decree as one concerning refinery employees in another area indicates that it would have had little relevance. Errors in evidentiary rulings are not grounds for reversal unless substantial prejudice results. Rule 103, Federal Rules of Evidence; see also Rule 61, Federal Rules of Civil Procedure. The propriety of class action suits can seldom be determined on the basis of pleadings alone, and, ordinarily, it is the duty of the trial court to hold an evidentiary hearing before deciding whether to grant or deny class certification. Huff v. N. D. Cass Co. of Alabama, 5 Cir. en banc 1973, 485 F.2d 710; Jones v. Diamond, 5 Cir. 1975, 519 F.2d 1090; Satterwhite v. City of Greenville, 5 Cir. en banc," }, { "docid": "17129459", "title": "", "text": "be punished by a fine of not more than five hundred dollars ($500.00), or by imprisonment in the county jail not more than six (6) months, or both. . We express here no view as to whether the burden placed upon the Government would differ, and if so in what respects, under § 11 of the Voting Rights Act of 1965, 79 Stat. 443, 42 U.S.C.A. § 1973i (Supp.1965). See Hearings Before Subcommittee No. 5 of the House Committee on the Judiciary on Voting Rights, 89th Gong., 1st Sess., on H.R. 6400 at 11; part 2 at 948-49. . The ramifications of application of this standard have been adequately summarized in a recent opinion of this Court: “The attack on the Court’s findings of fact is the not unnatural one that the Trial Judge ought not to have found as he did. But this misconceives our function. Wo do not retry the case. * * * We may determine only whether the findings pass muster under the clearly erroneous concept of F.R.Civ.P. 52(a), 28 U.S.C.A. The burden of upsetting these findings is indeed formidable here since the witnesses were all heard and seen by the Judge in open court and the crucial issues of motive and purpose involved credibility choices of the most ■elemental nature.” A finding is clearly erroneous, when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Where the evidence would support a conclusion either way, a choice by the trial judge between two permissible views of the weight of ■evidence is not clearly erroneous, and the fact that the judge totally rejected an opposed view impeaches neither his impartiality nor the propriety of his conclusions.” Chaney v. City of Galveston, 5th Cir. 1966, 368 F.2d 774, at 776 (Citations and footnotes omitted). . In arguing that the conduct of the marchers did not justify the legal action-taken, the Government would view the Mississippi breach of the peace statute very narrowly. This is shown by the following footnote" }, { "docid": "22034609", "title": "", "text": "on the part of any respondent; and that the sole proximate cause of the injury, if any, to libelant was his own heedlessness in not observing the safe practice of having spout tenders assist him and in attempting to spot the spout with only one tag line and permitting the second tag line to become secured to the ship. Appellant contends that the findings of the district court are clearly erroneous and should be set aside. Rule 52(a), Federal Rules of Civil Procedure, provides in part that “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” The situation here is not unlike that in our decision in Smith v. United States, 5 Cir., 1961, 287 F.2d 299, where Judge Brown wrote: “The attack on the Court’s findings of fact is the not unnatural one that the Trial Judge ought not to have found as he did. But this misconceives our function. We do not retry the case. Williams v. National Surety Corp., 5 Cir., 1958, 257 F.2d 771, 773. We may determine only whether the findings pass muster under the clearly erroneous concept of F.R.Civ.P. 52(a), 28 U.S.C.A. The burden of upsetting these findings is indeed formidable here since the witnesses were all heard and seen by the Judge in open court and the crucial issues of motive and purpose involved credibility choices of the most elemental nature.” A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Where the evidence would support a conclusion either way, a choice by the trial judge between two permissible views of the weight of evidence is not clearly erroneous, and the fact that the judge totally rejected an opposed view impeaches neither his impartiality nor the propriety of his conclusions. Such total rejection cannot of itself impugn the integrity or confidence of the trier of fact." }, { "docid": "18312826", "title": "", "text": "regard to this subject. No person testified that they contacted or otherwise attempted to influence the company to employ black women. Therefore, an inference that Huff was not recalled because of his activities as President of the local NAACP chapter on behalf of such a campaign is not supported by the record. Inferences are built only on established facts. Such an inference could only be built on testimony showing that the company, through its officials, was aware of this campaign and of Huff’s activities on its behalf. Nor can the fact that Huff was not recalled after black women were hired support such an inference, in the absence of some evidentiary support. Findings as to the intent, design, motive or purpose behind certain actions are peculiarly dependent upon the credibility of witnesses. When testimony conflicts as to the intent, design, motive or purpose behind a certain action, credibility choices must be made. Because of its opportunity to observe the witnesses and judge their credibility, such choices are for the trial court. United States v. Yellow Cab Co., 338 U.S. 338, 70 S.Ct. 177, 94 L.Ed. 150 (1949); United States v. Board of Education, 5 Cir., 1964, 332 F.2d 40; United States v. Leflore County, 5 Cir., 1967, 371 F.2d 368. Because of these facts, this Court, when called upon to review such a finding, gives due regard to the opportunity of the trial court to observe and judge the credibility of the witnesses and then disturbs its findings only if they are found to be “clearly erroneous”. For a finding to be clearly erroneous, after viewing the record, we must be left with a definite and firm conviction that a mistake has been committed. Fed.R.Civ.P. 52(a); Wimbish v. Pinellas County, 5 Cir., 1965, 342 F.2d 804; Chaney v. City of Galveston, 5 Cir., 1966, 368 F.2d 774. After a careful consideration of the record, we must hold that the trial court findings that Huff was not recalled because of the poor quality of his work is not clearly erroneous. II Huff also contends that the trial court erred when it" }, { "docid": "22593165", "title": "", "text": "the next. I have gotten to the point where I simply do not ■ believe any oral statements emanating from that office. After hearing the evidence, the district court concluded that Palermo and Saltzman were induced to plead guilty to the Provident robbery charge by representations made to them by Ludwig and O’Connor that they would receive parole after one year in prison; that Mackell knew of the specific commitments made about parole; that Ludwig and Mackell knew they had no such assurances from the Parole Board; and that Mackell clearly violated his agreement to take all possible steps to achieve an early parole for Palermo and Saltzman. In short, the district court concluded that the plea bargain was negotiated in bad faith by the prosecutors and that it was not carried out. Appellate review of findings of fact is limited to a determination of whether those findings are “clearly erroneous,” giving “due regard ... to the opportunity of the trial court to judge of the credibility of the witnesses.” Fed.R.Civ.P. 52(a). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Where findings relate to the design, motive and intent behind human actions, they especially depend upon the credibility assessment of witnesses by those who see and hear them. United States v. Yellow Cab Co., 338 U.S. 338, 341, 70 S.Ct. 177, 94 L.Ed. 150 (1949); Caputo v. Henderson, 541 F.2d 979, 984 (2d Cir. 1976); United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 713 (2d Cir. 1960). Thus, an appellate court, equipped only with a “cold” record, is appropriately reluctant to reject the credibility evaluations of the district court. The State challenges the district court’s findings on the ground that it failed to consider critical facts, primarily the extraordinary role played by Palermo’s attorneys Evseroff and Bobick. The State essentially contends that because" }, { "docid": "23560224", "title": "", "text": "tie onto Lackawanna’s sewer line. His continued refusal is the real and presently existing obstruction. A related contention suggests that the plaintiffs should be required to litigate the controversy in a state court. However, “Congress [has] imposed the duty on all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims.” Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967). We see no sound reason in this case, in which the plaintiffs allege racially discriminatory action by city officials, to justify denying to plaintiffs their federal forum. III. The main thrust of Lackawanna’s attack on the judgment here is that the finding of discrimination is not supported by the evidence. Lackawanna does not quarrel with the correctness of the district court’s , view that its action must be assessed not only in its immediate objective but its historical context and ultimate effect. Lackawanna does “take exception to the conclusions it [the Court] draws from the facts proven.” However, Rule 52(a) of the Federal Rules of Civil Procedure does not permit us to set aside findings unless they are “clearly erroneous,” giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. See Allstate Insurance Company v. Aetna Casualty & Surety Company, 326 F.2d 871, 874 (2d Cir. 1964). The trial judge here devoted 22 days to the trial. He listened to and observed the witnesses, read and studied the various exhibits, and he was fully informed as to the atmosphere in which the parties acted. The conclusions or findings “as to the design, motive and intent with which men act depend peculiarly upon the credibility given the witnesses by those who see and hear them.” United States v. Yellow Cab Company, 338 U.S. 338, 341, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949). This factor is more significant where the state action under inquiry is insidious and subtle rather than direct and open. While it “would be our duty to correct" }, { "docid": "22548364", "title": "", "text": "the United States, than according to the rules of the common law.” Most state constitutions have similar provisions. So long as there is some evidence from which the jury could arrive at the finding by a process of reasoning, the jury’s findings of fact, especially those resolving conflicts in testimony, will not be disturbed. Facts found by a judge alone need a stronger evidentiary base. Under Rule 52(a), Fed.R.Civ.P., the findings “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” “Clearly erroneous” has been interpreted to mean that a reviewing court can upset a finding of fact, even when supported by some evidence, but only if the court has “the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). More than 20 years ago, this was construed by us to mean that the appellate court must accept the factual determination of the fact finder unless that determination “either (1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data,” Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir.1972), and we have consistently adhered to this formula. See, e.g., United States v. Antoon, 933 F.2d 200, 204 (3d Cir.1991), American Home Prod. v. Barr Lab., 834 F.2d 368, 371 (3d Cir.1987), cert. denied, — U.S. -, 112 S.Ct. 300, 116 L.Ed.2d 243 (1991). Although there is a distinction between the sanctity of jury fact-finding protected by the Seventh Amendment and the extremely limited review of facts found by a judge permitted under the clearly erroneous rule, in neither event does common law tradition permit a reviewing court to consider evidence which was not before the tribunal of the first instance. Indeed, prohibiting consideration of other evidence on appeal that is not before the tribunal of the first instance is a basic difference that distinguishes appellate courts that operate" }, { "docid": "7588754", "title": "", "text": "404 F.2d 886, 887. A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20, 24 (1954); Chaney v. City of Galveston, 5 Cir. 1966, 368 F.2d 774, 776. Thus,.“in order for a reviewing court to set aside findings of fact by a trial court sitting without a jury, it must be clearly demonstrated that such findings are without adequate evidentiary support in the record, or were induced by an erroneous view of the law, and the burden of showing that the findings are clearly erroneous is on the one attacking them.” Chaney v. City of Galveston, supra at 776, citing Cedillo v. Standard Oil Co. of Texas, 5 Cir. 1961, 291 F.2d 246. In our posture as a reviewing court, we do not find the referee’s findings to be “clearly erroneous”. At the hearing on objections, the attorney for the bankrupt called the trustee to testify as an adverse witness.^ The attorney then proceeded to inquire as to what investigation the trustee had made prior to the filing of the objections to Connelly’s discharge. The trustee’s attorney objected to this questioning on the ground that the only issue was whether Connelly was guilty of acts that would bar his discharge in bankruptcy, and not whether the trustee was justified in filing his objections. The Referee sustained the objection. It is axiomatic that the party objecting to a bankrupt’s discharge has the burden to establish a reasonable basis for believing that the bankrupt has committed an act which would prevent a discharge in bankruptcy. Rice v. Mathews, 5 Cir. 1965, 342 F.2d 301; Gunzburg v. Johanneson, 5 Cir. 1962, 300 F.2d 40. When the trustee has met this burden, the burden of going forward with the evidence is upon the bankrupt to demonstrate that the bankrupt has not committed any of the alleged acts. In re Melnick, 2 Cir. 1966, 360" }, { "docid": "5463303", "title": "", "text": "almost two years of discovery, to establish the requisites for a class action set out in Rule 23, Federal Rules of Civil Procedure. Thereafter, the plaintiff’s individual claim was heard on the merits and dismissed. The court found that King was discharged because he was tardy, disobedient, incompetent and disinterested in his employment, not because of his race. There was substantial evidence to support those findings, particularly in the testimony of Green, King’s supervisor. The issue turned on whether the trial court credited Green or King. It was the trial judge’s right and duty to determine issues of credibility. See, e. g., Blunt v. Marion County School Bd., 5 Cir. 1975, 515 F.2d 951, 958; Orr v. Frank R. MacNeill & Son, Inc., 5 Cir. 1975, 511 F.2d 166, 169, cert. denied, 1975, 423 U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94; Hodgson v. H. Morgan Daniel Seafoods, Inc., 5 Cir. 1970, 433 F.2d 918, 920. Rule 52(a), Federal Rules of Civil Procedure, directs, “[findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Under our interpretation of Rule 52(a), a finding of fact is “clearly erroneous” if it leaves us with the “definite and firm conviction that a mistake has been committed.” Chaney v. City of Galveston, 5 Cir. 1966, 368 F.2d 774, 776; B. H. Bunn Co. v. AAA Replacement Parts Co., 5 Cir. 1971, 451 F.2d 1254, 1260. See also United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766. We have no such conviction in this case. Indeed, accepting the evaluations of witness credibility made by him, as we must, we find the factual conclusions he reached to be correct. The trial judge’s ruling excluding plaintiff’s Exhibit 1 (an Ohio determination that Mr. King was entitled to unemployment benefits) was also correct. This was a state, not a federal, record, cf. 28 U.S.C. § 1733, and it was not properly authenticated. 28 U.S.C. §" }, { "docid": "12012357", "title": "", "text": "the time such shots were to be made. Alternatively, Colonial was given the option to shut down its pumps and cut off its electricity for a two-day period in order that the seismic work could be done by appellant. In all other respects, Pennington’s demands were denied, the court holding that there was absolutely no need whatsoever for Colonial to drain their storage tanks, drain their pipeline, or stop the flow of liquid through its pipeline for Pennington to carry on his geophysical survey of the tract. This case involved issues of fact with a sharp conflict in the evidence between witnesses for plaintiff and defendant, especially among the experts. The findings of the district court were based on evidence of record after the judge, exercising his prerogative as a trial judge, resolved the testimony as a whole and gave each witness the weight and credibility which he thought merited by his testimony. As we said in Chaney v. City of Galveston, 5 Cir., 1966, 368 F.2d 774, 776: “It is well settled that in order for a reviewing court to set aside findings of fact by a trial court sitting without a jury, it must be clearly demonstrated that such findings are without adequate evidentiary support in the record, or were induced by an erroneous view of the law, and the burden of showing that the findings are clearly erroneous is on the one attacking them. The findings of a district court are not, therefore, lightly to be set aside, for the Court of Appeals is not a trier of facts, and does not substitute its own judgment for that of the trial court.” For findings to be clearly erroneous we must be left with a definite and firm conviction that a mistake has been committed. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); United States v. Oregon State Medical Soc., 343 U.S. 326, 72 S.Ct. 690, 96 L.Ed. 978 (1952); United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Smith v. M/V Gisna, 5" }, { "docid": "18312827", "title": "", "text": "Cab Co., 338 U.S. 338, 70 S.Ct. 177, 94 L.Ed. 150 (1949); United States v. Board of Education, 5 Cir., 1964, 332 F.2d 40; United States v. Leflore County, 5 Cir., 1967, 371 F.2d 368. Because of these facts, this Court, when called upon to review such a finding, gives due regard to the opportunity of the trial court to observe and judge the credibility of the witnesses and then disturbs its findings only if they are found to be “clearly erroneous”. For a finding to be clearly erroneous, after viewing the record, we must be left with a definite and firm conviction that a mistake has been committed. Fed.R.Civ.P. 52(a); Wimbish v. Pinellas County, 5 Cir., 1965, 342 F.2d 804; Chaney v. City of Galveston, 5 Cir., 1966, 368 F.2d 774. After a careful consideration of the record, we must hold that the trial court findings that Huff was not recalled because of the poor quality of his work is not clearly erroneous. II Huff also contends that the trial court erred when it refused to compel the company to answer every one of the interrogatories which were propounded by him on April 6, 1971. The company at the time was required only to answer those interrogatories which the Court decided were relevant on the question concerning Huff’s individual claim. As a result, no answers were given to interrogatories which concerned the class action issues, e. g., separate lines of progression, restriction of blacks to menial, low-paying jobs, etc. The company contends that because these issues were not before the Court at that time, the trial court correctly postponed the answering of the interrogatories which might have cast light on them until a determination could be made as to propriety of the class action. It particularly relies on Rule 26(b) of the Federal Rules of Civil Procedure, which is incorporated into Rule 33 of those same rules. These rules limit discovery of interrogatories to those matters which are relevant to the subject matter involved in the pending action or which are reasonably calculated to lead to the discovery of" }, { "docid": "18312825", "title": "", "text": "many items on the hooks of the conveyor and that “a time or two”, two or three chairs had been destroyed because of his negligence. He also admitted that products had been brought to him by other employees of the production department and that the paint shield on the conveyor had been damaged once every two or three months during his employment at the company’s plant. However, he claimed that the destruction of the paint shield was not caused by any negligence on his part. Although Huff complained that his discharge was caused by his activities as President of the local NAACP chapter in a campaign to force the company to hire black women, there is no evidence that company management was aware of such a campaign or of Huff’s participation on its behalf. No evidence appears in the record showing that any official of the NAACP ever contacted the com pany with regard to the employment of black women. Huff, testifying on his own behalf, never testified that he talked with company officials with regard to this subject. No person testified that they contacted or otherwise attempted to influence the company to employ black women. Therefore, an inference that Huff was not recalled because of his activities as President of the local NAACP chapter on behalf of such a campaign is not supported by the record. Inferences are built only on established facts. Such an inference could only be built on testimony showing that the company, through its officials, was aware of this campaign and of Huff’s activities on its behalf. Nor can the fact that Huff was not recalled after black women were hired support such an inference, in the absence of some evidentiary support. Findings as to the intent, design, motive or purpose behind certain actions are peculiarly dependent upon the credibility of witnesses. When testimony conflicts as to the intent, design, motive or purpose behind a certain action, credibility choices must be made. Because of its opportunity to observe the witnesses and judge their credibility, such choices are for the trial court. United States v. Yellow" }, { "docid": "23560225", "title": "", "text": "draws from the facts proven.” However, Rule 52(a) of the Federal Rules of Civil Procedure does not permit us to set aside findings unless they are “clearly erroneous,” giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. See Allstate Insurance Company v. Aetna Casualty & Surety Company, 326 F.2d 871, 874 (2d Cir. 1964). The trial judge here devoted 22 days to the trial. He listened to and observed the witnesses, read and studied the various exhibits, and he was fully informed as to the atmosphere in which the parties acted. The conclusions or findings “as to the design, motive and intent with which men act depend peculiarly upon the credibility given the witnesses by those who see and hear them.” United States v. Yellow Cab Company, 338 U.S. 338, 341, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949). This factor is more significant where the state action under inquiry is insidious and subtle rather than direct and open. While it “would be our duty to correct clear error, even in findings of fact,” id. at 342, 70 S.Ct. at 179, we cannot do so where the findings have substantial support in the record. Our examination of the record reveals substantial support for the findings here. As the Supreme Court said in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961): “Only by sifting facts and weighing circumstances” on a case by case basis can the “non-obvious involvement of the State in private conduct be attributed its true significance.” An analysis of Supreme Court cases in this area indicates the relevant considerations and approach. In Wilmington Parking Authority, supra, at 725, 81 S.Ct. 861, the Court found Delaware to be involved in private discrimination because it had “elected to place its power, property and prestige behind the admitted discrimination” and by its inaction had made itself a party to the discriminatory act. And in Reitman v. Mulkey, 887 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), the Court approved the action of the Supreme Court" }, { "docid": "23226716", "title": "", "text": "we will disturb the ruling only if we are left with the definite and firm conviction that the trial judge erred. See United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir.1984); United States v. Alegria, 721 F.2d 758, 761 (11th Cir.1983); see also United States v. Edmondson, 791 F.2d 1512, 1514-1515 (11th Cir.1986) (finding of fact clearly erroneous when reviewing court is left with definite and firm conviction that mistake was committed). However, this is true because the trial judge usually bases his finding on credibility choices resulting from conflicting testimony. Further, in making these choices, the trial judge routinely relies, at least to a certain extent, on the demeanor of witnesses-an experience which the appellate court does not share. Thus, because in the ordinary case a finding of voluntariness is based on credibility choices, we will not overturn the trial judge’s finding that defendant’s consent was voluntary, unless it is clearly erroneous. See United States v. Aldridge, 719 F.2d 368, 373 (11th Cir.1983); United States v. Waksal, 709 F.2d 653, 656 n. 4 (11th Cir.1983). This case, however, is not the ordinary case. Unlike most cases in which both parties introduce conflicting evidence on the issue of voluntariness, in this case defendant introduced no evidence to contradict the government's evidence regarding the circumstances under which Garcia's consent was obtained. Evidence of the circumstances under which the agents elicited Garcia's consent was introduced solely by the government through its witnesses-DEA agent Gravat, DEA agent Raffenello, Miami Police Department Officer Diazlay, and Secret Service Agent Trasollas. Defendant did not testify. Thus, the trial court was compelled to rely only on the uncontradicted testimony of the government's witnesses. This leads us to the conclusion that unless the trial judge doubted the credibility of any of the government’s witnesses, his decision was based on the application of what he believed to be the existing law as applied to the uncontroverted facts. We can not conclude from the record that the district judge questioned the agents’ accounts of the events that took place on April 21, 1988. Accordingly, we believe that the trial" }, { "docid": "20459917", "title": "", "text": "are unforeseeable, 28 C.F.R. § 571.60. GRABER, Circuit Judge, dissenting: I respectfully dissent. “Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed.R.Civ.P. 52(a)(6). [ A] finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed .... If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice betiueen them cannot be clearly erroneous. Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (internal quotation marks and citations omitted) (emphasis added); see also United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir.2009) (en banc) (“[T]he Supreme Court’s precedent convinces us that any ‘definite and firm conviction’ of the reviewing court must still include some measure of deference to the trial court’s factual determinations.”). That general rule applies with particular force to the weighing of witnesses’ credibility. “When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.” Anderson, 470 U.S. at 575, 105 S.Ct. 1504; see also Allen v. Iranon, 283 F.3d 1070, 1078 n. 8 (9th Cir.2002). On remand, the district court judge described Pineda-Doval’s demeanor as follows: [ Wjatching [Pineda-Doval] in the course of these proceedings, both past and in the present, he demonstrates everything but remorse in this case[ ]. It’s just ho-hum. So somebody — I" }, { "docid": "23333593", "title": "", "text": "not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witness”. This Court has adhered to that rule in many instances. As it has previously said: “A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Where the evidence would support a conclusion either way, a choice by the trial judge between two permissible views of the weight of the evidence is not clearly erroneous, and the fact that the trial judge totally rejected an opposed view impeaches neither his impartiality nor the propriety of his conclusions”. Chaney v. City of Galveston, 368 F.2d 774, 776 (5th Cir. 1966). The burden of proving that the findings are clearly erroneous is, of course, on the party attacking them. Cedillo v. Standard Oil Co. of Texas, 291 F.2d 246 (5th Cir. 1961). On the question as to whether the rail fell because of defective welding, three witnesses were called. One, a lay witness, testified that the iron was attached by only one of two welds, thus creating a defective condition and ultimately causing the break. Two expert witnesses testified that the bar gave only an appearance of being welded in only a few places but was actually welded in a continuous seam. It was their opinion that the vibrations from the vibrator caused the break. The appellant contends that the Court erred in not accepting the experts’ testimony. However, it must be borne in mind that: “ * * * this Court has repeatedly held that a trier of facts need not accept the opinion testimony of expert witnesses, even though uncontra-dicted”. Boon Enterprises, Inc. v. Carstairs, 312 F.2d 323 (5th Cir. 1963). The appellant denies that it knew of the alleged defects but such a contention, even if true, is not conclusive. Since this is a diversity action, Louisiana substantive law is controlling. Chicago, R. I. & P. R. Co." }, { "docid": "15220731", "title": "", "text": "without a jury only if the findings are “clearly erroneous.” Fed.R.Civ.P. 52(a). To set aside such findings of fact, we must be left, after reviewing the entire record, “with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948), reh’g denied 333 U.S. 869, 68 S.Ct. 788, 92 L.Ed. 1147 (1948). In making a decision as to whether a mistake has occurred, this court defers to the district court’s determinations with respect to the credibility of witnesses. “Findings as to the design, motive and intent with which men act depend peculiarly upon the credit given to witnesses by those who see and hear them.” United States v. Yellow Cab Co., 338 U.S. 338, 341, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949). In a recent case also involving racial motivation of public officials in withdrawing support for a low-income housing project, Smith v. Town of Clarkton, 682 F.2d 1055, 1064-1065 (1982), the Fourth Circuit wrote: Municipal officials acting in their official capacities seldom, if ever, announce on the record that they are pursuing a particular course of action because of their desire to discriminate against a racial minority. Even individuals acting from invidious motivations realize the unattractiveness of their prejudices when faced with their perpetuation in the public record. It is only in private conversation, with individuals assumed to share their bigotry, that open statements of discrimination are made, so it is rare that these statements can be captured for purposes of proving racial discrimination in a case such as this. The trial court, in making findings of fact, was faced with the same problems confronting trial courts everywhere sitting as finders of fact in eases involving racial discrimination. We conclude that the city’s contentions that the findings of the district court are based upon hearsay testimony and are “clearly erroneous” are without merit. IV The City also contends the district court erred by examining the motivation of voters who opposed the Baldwin House proposal in the nonbinding referendum held" }, { "docid": "22034610", "title": "", "text": "do not retry the case. Williams v. National Surety Corp., 5 Cir., 1958, 257 F.2d 771, 773. We may determine only whether the findings pass muster under the clearly erroneous concept of F.R.Civ.P. 52(a), 28 U.S.C.A. The burden of upsetting these findings is indeed formidable here since the witnesses were all heard and seen by the Judge in open court and the crucial issues of motive and purpose involved credibility choices of the most elemental nature.” A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Where the evidence would support a conclusion either way, a choice by the trial judge between two permissible views of the weight of evidence is not clearly erroneous, and the fact that the judge totally rejected an opposed view impeaches neither his impartiality nor the propriety of his conclusions. Such total rejection cannot of itself impugn the integrity or confidence of the trier of fact. It is well settled that in order for a reviewing court to set aside findings of fact by a trial court sitting without a jury, it must be clearly demonstrated that such findings are without adequate evidentiary support in the record, or were induced by an erroneous view of the law, and the burden of showing that the findings are clearly erroneous is on the one attacking them. The findings of a district court are not, therefore, lightly to be set aside, for the Court of Appeals is not a trier of facts, and does not substitute its own judgment for that of the trial court. An extended review of the evidence is not justified, therefore, under the circumstances. Nevertheless, we have carefully considered the errors complained of by appellant, as follows: 1. The court found that Chaney could not have fallen from stacked pontoons. This is a disputed question of fact and libelant testified that is how he was hurt. However, one of his principal witnesses said that his best recollection was that Chaney" } ]

[ { "docid": "23423036", "title": "", "text": "and the transferee; and “(D) made according to ordinary business terms;” Collier on Bankruptcy 15th ed., Para. 547.38, states that payment of a debt in the ordinary course of business within forty-five (45) days after it was incurred will not effect a preference. The legislative history, particularly House Report No. 95-595, U.S. Code Cong. & Admin.News 1978, p. 5787, is in accord. The key word is when a debt is “incurred”. The exception of § 547(c)(2) is discussed by Richard B. Levin in An Introduction to the Trustee’s Avoiding Powers, 53 Am. Bankr.L.J. 173,187 (1979). The comment is particularly significant since Mr. Levin was on the House Judiciary Committee staff that drafted the Code. Mr. Levin discusses the intent of the second exception (§ 547(c)(2)) which was relied upon by defendant. At page 186, Mr. Levin says: The second exception to the preference section insulates ordinary trade credit transactions that are kept current. The requirements of the exception are that the incurring of the credit and the payment both be made in the ordinary course of business of the debtor and the creditor, that the transaction be according to ordinary business terms, and that the debtor’s payment to the creditor be made not later than 45 days after the debt was incurred. Forty-five days was selected as a normal trade credit cycle. For example, a normal trade credit transaction might be as follows: supplier ships goods during month 1 and sends his bill to the debtor at the end of the month or the very early part of the following month. Normally, that bill would become due, or will be payable in the debtor’s ordinary course of business, by the 10th of month 2. If it is paid by the 15th, then there will be no question that the entire transaction — incurring of the credit and the payment— took place within 45 days. Congress has not defined when a debt is incurred. In the preceding example, of course, there is no question. However, if the supplier’s bill were paid toward the end of month 2, the supplier/creditor might argue" } ]

[ { "docid": "20915719", "title": "", "text": "himself. This was anything/ but “in the ordinary course of business.’/’ The “ordinary course of business exception” was enacted. . . “... to leave undisturbed normal financial relations, because it does not detract from the general policy of the preference section to discourage unusual action by either the debtor or his creditors during the debtor’s slide into bankruptcy . .” House Report No. 95-595, 95th Cong., 1st Sess. (1977) 373, U.S.Code Cong. & Admin.News 1978, 5787; Senate Report No. 95-989, 95th Cong., 2d Sess. (1978) 88 U.S.Code Cong. & Admin.News 1978, 5787. See also 4 Collier on Bankruptcy (15th Ed.) ¶ 547.38, p. 547-113. In re Bowen, 3 B.K. 617, 6 B.C.D. 254 (Bkrpt. Ct. E.D.Tenn.1980) makes reference to Richard B. Levin’s article, “An Introduction To The Trustee’s Avoiding Powers”, 53 Am.Bankr.L.J. 173, 186 (1979), which uses the label, “ordinary trade credit transactions” and gives as an example the sale of goods from a business supplier on account. Another interesting discussion is found in an article by Michael Kaye, “Preferences Under The New Bankruptcy Code”, 54 Am. Bankr.L.J. 197, 209-2 (1980): “... There was no such express exception under the Old Act. However, the courts often allowed regular business expenses paid by the debtor under the rationale that it was in the best interest of the estate to allow the debtor to continue in business. The “current expense” rule, as it was known, also was predicated on the notion that current expenses were not antecedent debt, and therefore payment of them was not preferential. 3 Collier on Bankruptcy ¶ 60.19 (14th Ed. 1975) at 874-853 ... “Expenses generally allowed included wages and rent, 3 Collier, supra at 852-53, and general operational expenses . . . [cites cases covering advertising, warehousing, and general business expenses, and payment of rent/tax arrearages to realize value of leasehold] . .. “... Whether in practice Code § 547(c)(2) allows the same expenses as did the ‘current expense’ rule, remains to be seen. The underlying rationale of the two is the same: no diminution of the estate, payment not for antecedent debt, and allowing the debtor" }, { "docid": "17273891", "title": "", "text": "§ 547(c)(3) virtually meaningless. If § 547(c)(1) applied to all such cases, the ten day grace period would serve as little more than an evidentiary presumption. In all other enabling loan cases, the court would engage in extensive fact-finding to determine whether the elements of § 547(c)(3) were satisfied. See In re Murray, 27 B.R. at 452. Absent a legislative directive to the contrary, we decline to interpret § 547(c)(1) so broadly. Accordingly, we hold that 11 U.S.C. § 547(c)(1) is not available to except from avoidance an enabling loan perfected beyond the ten day period allowed in § 547(c)(3). The decision of the district court is REVERSED. . Leading commentators have concurred that the contemporaneous exchange exception is not available to excuse untimely perfection of an enabling loan. See 2 Norton Bankr.L. & Prac. § 31-13 at 41-42 (1981); White & Summers, Uniform Commercial Code § 24-4 at 1006 (2d ed.1980); 4 L. King, Collier on Bankruptcy ¶ 547.46 at 136.4 n. 13c (15th ed. 1982). . A member of the House Judiciary Committee staff responsible for the drafting of the Bankruptcy Reform Act of 1978 explained: The first exception is a simple one, excepting a transfer that is really not on account of an antecedent debt. No doubt a purchase by the debtor of goods or services with a check, if deemed to be on credit by state law, would be insulated by this exception. Though strictly speaking the transaction may be a credit transaction because the seller does not receive payment until the check is cleared through the debtor’s bank, it is generally considered and intended to be a contemporaneous transaction, and assuming the check is promptly deposited and cleared, is in fact substantially contemporaneous. Levin, An Introduction to the Trustee’s Avoiding Powers, 53 Am.Bankr.LJ. 173, 186 (1979). . In support of its contention that subsections (c)(1) and (c)(3) are not mutually exclusive, FMCC relies on the following statement from the legislative history: Subsection (c) contains exceptions to the trustee’s avoiding power. If a creditor can qualify under any one of the exceptions, then he is protected" }, { "docid": "10164762", "title": "", "text": "current.” Levin, An Introduction to the Trustee’s Avoiding Powers, 53 Am. Bankr.L.J. 173, 186 (1979). Levin explains that the 45-day limit was chosen because it reflected a normal trade cycle. Id. The Court finds these descriptions of the purpose and history of the ordinary course exception persuasive and agrees with the Court of Appeals for the Seventh Circuit that the exception was not intended for credit transactions which will remain unpaid for a long time. Barash v. Public Finance Corp., 658 F.2d 504 (7th Cir.1981). See also, In re Goodman Industries, Inc., 21 B.R. 512, 522-23 (Bkrtcy.D.Mass.1982); In re McCormick, 5 B.R. 726 (Bkrtcy.N.D. Ohio 1980); In re Bowen, 3 B.R. 617, 619 (Bkrtcy.E.D.Tenn.1980). The Barash case involved installment payments on consumer credit transactions, which are highly similar to the long-term loans at issue here. Defendants rely on In re Iowa Premium Service Co., Inc., 695 F.2d 1109 (8th Cir.1982), in which a divided en banc Court held that interest payments, as distinguished from principal payments, on a long-term bank loan are subject to exception under section 547(c)(2). In that case the Court distinguished Barash, finding that the Court had not addressed the question of interest payments as separate from principal payments. The Court in Iowa Premium Service accepted the Barash court’s interpretation of section 547(c)(2) to the extent that it held that a debt is incurred on the date when the debtor first becomes legally bound to pay. The court then found that the debt for interest payments where interest was due monthly was incurred on a monthly basis because the debtor had no obligation to pay the interest when the note arose but, instead, only became obligated to pay as it used the money. Because the debt for interest was incurred each month, on a continuing basis, the court found that the monthly interest payments had been made within 45 days of the date the debt was incurred and were subject to the exception. This Court thinks that the Iowa Premium court has taken a rather artificial and unnecessarily limited view of what occurs when a long-term loan" }, { "docid": "7867150", "title": "", "text": "547(b). In this case, the parties stipulated to the facts (except that of insolvency, see II infra) establishing each of the elements of the claim, which all must be proved by the trustee before recovery of the transfer. See 4 Collier on Bankruptcy ][ 547.01, at 547-11 (15th ed. 1982). March 3, 1980 — Emerald paid Wilson for the work; May 16, 1980 — Emerald filed its petition in bankruptcy. Thus, Emerald's payment of March 3rd to Wilson may be reclaimed by the trustee if the debt was incurred on January 3rd (sixty days earlier), the date the work was completed; but it may not be reclaimed if the debt was incurred on January 17th (45 days earlier), the date that Wilson invoiced Emerald for the contract work. The term “incurred” is not defined in the Bankruptcy Code of 1978. The exception to the trustee’s powers to avoid preferential transfers created by section 547(c)(2)— which applies to payments made “in the ordinary course of business” of debts “incurred in the ordinary course of business”, if the payment was made “not later than 45 days after the debt was incurred ” — had no counterpart in the prior bankruptcy statute. The “ordinary course of business” exception was designed to replace the former judicially-created “current expense” doctrine, whereby current expenses were not regarded as antecedent debts, so that payment thereof was not preferential. Barash v. Public Finance Corp., 658 F.2d 504, 510-11 (7th Cir.1981); Kaye, Preferences Under the New Bankruptcy Code, 54 Am.Bankr. L.J. 197, 201-^-02 (1980). Payment within forty-five days was regarded as the normal trade credit cycle for goods or services furnished during a month, billed at the end thereof, with payment to be received within no more than fifteen days from billing. Barash, supra, 658 F.2d at 511; Levin, An Introduction to the Trustee’s Avoiding Powers, 53 Am.Bankr.L.J. 173, 186-87 (1979). The commentators early noted that troublesome issues may arise in the judicial interpretation of the date that a debt is “incurred”. See, e.g., 4 Collier on Bankruptcy ¶ 547.38, at 547-121 (15th ed. 1982); Kaye, supra, 54 Am.Bankr.L.J." }, { "docid": "18731543", "title": "", "text": "transfer or the creditors’ “reasonable cause to believe” that the debtors were insolvent. In fact, this was the impetus behind the 1978 amendments which eliminated the reasonable-cause-to-believe element and established the presumption of insolvency. See H.R. Rep.No.95-595, supra at 178 — 79, 5 U.S. Code Cong. & Admin.News at 6139-40. Nothing in § 547(c)(2) or its history suggests otherwise. There was no express exception for normal business or financial affairs transactions under the old Bankruptcy Act, but courts often allowed an exception for regular business expenses based on the notion that current expenses were not antecedent debts. See In re Peninsula Roofing and Sheet Metal, Inc., 9 B.R. 257, 261-62 (Bkrtcy.W.D.Mich.1981), citing Kaye, Preferences under the New Bankruptcy Code, 54 Am.Bankr.L.J. 197, 209 (1980). The underlying rationale of § 547(c)(2) appears to be the same as the “current expense” rule under former law: “no diminution of the estate, payment not for antecedent debt, and allowing the debtor to stay in business.” Id. at 262. The new Code, however, sets out objective criteria, particularly the 45-day time limit, for applying the exception. In short, the § 547(c)(2) exception is aimed at transactions which, although they are technically credit transactions, are not intended to remain unpaid for a long time. In this sense, the “normal payments” exception is a variant of the “contemporaneous exchange” exception of § 547(c)(1). The courts in In re McCormick, 5 B.R. 726 (Bkrtcy. N.D. Ohio) and In re Bowen, 3 B.R. 617, 619 (Bkrtcy.E.D.Tenn.1980) considered consumer credit transactions comparable to the cases at bar and reached the same conclusion. Both courts based their analysis on Levin, An Introduction to the Trustee’s Avoiding Powers, 53 Am.Bankr.L.J. 173 (1979). Levin was a member of the House Judiciary Committee staff which drafted the new Code. He explains in his article that § 547(c)(2) insulates ordinary trade credit transactions that are kept current. The 45-day limit was chosen because it reflected a normal trade cycle, and Levin agrees with Collier and our conclusion above that a debt is incurred when it becomes a legally binding obligation of the debtor. Id. at" }, { "docid": "23057886", "title": "", "text": "substantially contemporaneous, and thus unlike antecedent debt. In other words, payment for goods and services where delivered or rendered, or paying for them within 45 days thereafter, did not contravene the policies of section 547. The legislative history of section 547(c)(2) states that “[t]he purpose of this exception is to leave undisturbed normal financial relations, because it does not detract from the general policy of the preference section to discourage unusual action by either the debtor or his creditors during the debtor’s slide into bankruptcy.” House Report 95-595, 95th Congress, 1st Session (1977), U.S. Code Cong. & Admin.News 1978, pp. 5787, 6329. Thus, payments made by a debtor to employees, suppliers, for utilities and rent, and other similar operating expenses or trade credit transactions, were intended by Congress to be exempt from recovery as preference. See Freehling v. Carson (In re Top Sport Distributors, Inc.) 41 B.R. 235 (Bankr.S.D.Fla.1984); Armstrong v. General Growth Development Corp. (In re Clothes Inc.) 45 B.R. 419 (Bankr.D.N.D.1984); See also Lingley v. E.B. Kitfield and Co. (In re Nepsco, Inc.) 49 B.R. 152 (Bankr.D.Me.1985). The question thus becomes whether, in amending section 547(c)(2) to eliminate the 45 day limit, Congress intended to fundamentally change the scope of the ordinary course exception. This court is convinced that the better view is that the amendment was intended only to eliminate an artificial time limit, and no more. The 45 day limit was eliminated so that the provisions of the Code would comport with normal business policies. From its inception, section 547(c)(2) was intended to exempt normal trade credit transactions. Levin, “An Introduction to the Trustee’s Avoiding Powers”, 53 Am.Bankr.L.J. 173 (1979). The 45 day provision was intended to reflect a normal trade credit cycle. Id. However, after the enactment of the 1978 Code it became clear that trade credit cycles differ from industry to industry, and that the 45 day limit was arbitrary and overly restrictive. The number of cases in which the question of the 45 day provision has been litigated in one way or another, only a few of which are cited herein, attests to" }, { "docid": "22144545", "title": "", "text": "are present, but element (B) is not. Subsection (B) requires that payment be made within 45 days after the debt was incurred. Since BancOhio must have received the car payments within this required time to qualify for the exception, it is crucial to determine exactly when the 45 day period began and ended. To determine these important dates the Court must interpret the intent of Congress in the use of the phrase “45 days after such debt was incurred.” If Congress intended this phrase to apply to installment loan contracts so that a debt is considered to be “incurred” anew every month when the installment becomes due, the payments to BancOhio could not have been preferences, since the debtor makes each payment within 45 days of its due date. However, if Congress intended the phrase to refer only to the date on which the debtor originally assumes a legal obligation to pay, the payments to BancOhio were indeed preferences, since the 45 days had expired long before the payments were made. The Court finds that the latter interpretation of section 547(c)(2) correctly reflects the intent of Congress. Collier on Bankruptcy supports this view and states that a debt is “incurred” only once and that the 45-day period runs from the time the obligation to pay becomes legally binding. Paragraph 547.38 provides as follows: The issue of when a debt is “incurred” is not trivial. One view is that the debt is not incurred until an invoice is sent or demand for payment is made. The better view is that the debt is incurred when even the debtor obtains a property interest in the consideration exchanged giving rise to the debt. 4 Collier on Bankruptcy, Section 547.38 (15th ed. 1979). Mr. Richard B. Levin, a member of the House Judiciary Committee Staff which drafted the Code also concurs in this interpretation of section 547(c)(2)(B). In his article “An Introduction to the Trustee’s Avoiding Powers” 53 Am. Bankr. L.J. 173 (Spring 1979) Mr. Levin states as follows: The second exception to the preference section insulates ordinary trade credit transactions that are kept" }, { "docid": "23367621", "title": "", "text": "purpose of the provision. The first exception is for a transfer that was intended by all parties to be a contemporaneous exchange for new value and was in fact substantially contemporaneous. Normally a check is a credit transaction. However, for the purposes of the paragraph, a transfer involving a check is considered to be “intended to be contemporaneous,” and if the check is presented for payment in the normal course of affairs, which the Uniform Commercial Code specifies as 30 days, U.C.C. § 3-503(2)(a), that will amount to a transfer that is “in fact substantially contemporaneous.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 373, reprinted in 1978 U.S.Code Cong. & Ad. News 6329. Richard Levin, a member of the House Judiciary Committee staff during the drafting of the Bankruptcy Reform Act of 1978, further explains that: ... The first exception [the contemporaneous exchange exception] is a simple one, excepting a transfer that is really not on account of an antecedent. No doubt a purchase by the debtor of goods or services with a check, if deemed to be on credit by state law, would be insulated by this exception. Though strictly speaking the transaction may be a credit transaction because the seller does not receive payment until the check is cleared through the debtor’s bank, it is generally considered and intended to be a contemporaneous transaction, and assuming the check is promptly deposited and cleared, is in fact substantially contemporaneous. “An Introduction to the Trustee’s Avoiding Powers,” 53 Am.Bankr.L.J. 173, 186 (Spring 1979). Congress was apparently concerned that cash payments would be converted to credit transactions by a mere delay in receipt or deposit. Essentially cash transactions were not intended to be avoidable preferences. Congress, therefore, created two separate exceptions, distinguishing between credit transactions which were governed by § 547(c)(3) and noncredit transactions governed by § 547(c)(1). As the court stated in Enlow: The explicit reference by Congress in § 547(c)(3) to enabling loans lends further support to the conclusion that § 547(c)(1) is not applicable to the instant transaction. Through its enactment of § 547(c)(3) Congress intended to make" }, { "docid": "19375410", "title": "", "text": "loan even though the mortgage was not actually executed until seven days after the loan was made. See, e.g., In re Advance Glove Mfg. Co., 25 B.R. 521 (Bkrtcy.E.D.Mich.1982); In re Marietta, 22 B.R. 649 (Bkrtcy.D.Colo.1982). Whether Dean v. Davis survived passage of the Bankruptcy Reform Act of 1978, and was codified- into section 547(c)(1) has been questioned, however. In re Murray, 27 B.R. 445 (Bkrtcy.M.D.Tenn.1983). Nonetheless, it is clear that the classic exception to avoidance intended by Congress to be reflected in section 547(c)(1) is the exchange of goods or other “value” for a check. Such transactions are generally intended to be cash transactions, although some extension of credit is necessarily involved until the check is negotiated. As Richard Levin, a member of the House Judiciary Committee staff during the drafting of the Bankruptcy Reform Act of 1978, notes, Congress was concerned that these essentially cash transactions not be converted to credit transactions because of delay in depositing the checks intended as cash payments: ... The first exception [the contemporaneous exchange exception] is a simple one, excepting a transfer that is really not on account of an antecedent debt. No doubt a purchase by the debtor of goods or services with a check, if deemed to be on credit by state law, would be insulated by this exception. Though strictly speaking the transaction may be a credit transaction because the seller does not receive payment until the check is cleared through the debtor’s bank, it is generally considered and intended to be a contemporaneous transaction, and assuming the check is promptly deposited and cleared, is in fact substantially contemporaneous. “An Introduction to the Trustee’s Avoiding Powers,” 53 Am.Bankr.L.J. 173, 186 (Spring 1979). Although the legislative history reveals that even a 30-day delay between receipt and negotiation of a check does not preclude a substantially contemporaneous exchange, standard commercial practices appropriate to the transfer of negotiable instruments are not necessarily commensurate with those involving security interests. Congress has given security interests specialized treatment both in sections 547(c)(3) and 547(e)(2). That Congress explicitly enacted a 10-day limitation for the perfection of" }, { "docid": "18745802", "title": "", "text": "invoice. Nonetheless, eight of the disputed payments were late even with regard to the parties’ course of dealings. Lateness is particularly relevant in determining whether payments should be protected by the ordinary course of business exception. As several courts have noted, this exception is directed primarily to ordinary trade credit transactions. These typically involve some extension of credit but are meant to be paid in full within a single billing cycle. See, e.g., Barash v. Public Finance Corp., 658 F.2d 504, 511 (7th Cir.1981) (citing Levin, An Introduction to the Trustee’s Avoiding Powers, 53 Am.Bankr.L.J. 173 (1979)); In re Kennesaw Mint, Inc., 32 B.R. 799 (Bkrtcy.N.D.Ga.1983); In re Penninsula Roofing, supra. Because the credit extended is meant to be extremely short-term, Congress likened payment of trade credit to payment of current expenses. Recognizing that the latter had traditionally been protected from avoidance in bankruptcy, Congress extended the same protection to trade credit through the ordinary course of business provision. See Barash, supra (§ 547(c)(2) codifies the “current expense rule” employed under the Code; ordinary course of business is a variant of the contemporaneous exchange exception of § 547(c)(1)). Since the foundation of this provision is the similarity of trade credit and current expenses, the scope of its protection is necessarily limited to trade credit which is “kept current” or other transactions which are paid in full within the initial billing cycle. Thus, untimely payments are more likely to be considered outside the ordinary course of business and avoidable as preferences. Indeed, several recent cases have distinguished lateness as an important factor in finding payments outside the ordinary course. In In re Gold Coast Seed Co., 24 B.R. 595, 597 (Bkrtcy. 9th Cir.1982), the Ninth Circuit Bankruptcy Appellate Panel found that untimeliness “in particular” placed the payment outside the ordinary course “as a matter of law.” The Bankruptcy Court of Minnesota has likewise held that overdue payments are not in the ordinary course. See In re Ewald Bros. Inc., 45 B.R. 52, 59 (Bkrtcy.D.Minn.1984). In contrast, the bankruptcy court in In re Mindy’s, Inc., 17 B.R. 177 (Bkrtcy.S.D.Ohio 1982), found certain" }, { "docid": "10164760", "title": "", "text": "within the meaning of section 547(c)(2). They contend that a debt for interest, as distinguished from the principal on a loan, is incurred when it becomes due. The interest on the various loans at issue here became due monthly on particular dates. Defendants conclude that because they received payments of interest within 45 days after the dates that they were due that they qualify for the exception. Plaintiff contends, however, that section 547(c)(2) was not intended to apply to long-term credit and that even if it were, a debt for interest is incurred at the time of the making of the loan. Therefore, these interest payments would have been incurred outside the 45-day period. The issues raised here involve matters of statutory construction and policy that have not been uniformly resolved by the courts addressing them. Both sides cite well-reasoned opinions supporting their positions. After a thorough examination of the problem, however, the Court remains unpersuaded that the exception for payments made in the ordinary course of business was meant to apply to long-term loans and specifically to the interest component of payments on such loans divorced from payments on the principal. Under the old Bankruptcy Act there was no express exception for payment of debts made in the ordinary course of business. There was, however, a judicially-created exception, the current expense rule, which provided an exception for regular business expenses paid by the debtor. Kaye, Preferences Under the New Bankruptcy Code, 54 Am.Bankr.L.J. 197, 201-02 (1980). The current expense rule was premised on the idea that allowing the debtor to remain in business was best for the estate. Another reason for the exception was that current expenses were not considered antecedent debts. Id. According to at least one commentator, the rationale for the current expense rule and the exception set forth in section 547(c)(2) is the same: “no dimunition of the estate, payment not for antecedent debt, and allowing the debtor to stay in business.” Id. Reinforcing this interpretation is another commentator’s description of the ordinary course of business exception as insulating “ordinary trade credit transactions that are kept" }, { "docid": "11068849", "title": "", "text": "trustee may not avoid under this section a transfer— (2) to the extent that such transfer was— (A) in payment of a debt incurred in the ordinary course of business or financial affairs of the debtor and the transferee; (B) made not later than 45 days after such debt was incurred; (C) made in the ordinary course of business or financial affairs of the debtor and the transferee; and (D) made according to ordinary business terms.... U. S. Life apparently asserts that all four elements are not required to meet the terms of the exception. The ease law does not support that interpretation. In discussing § 547(c)(2), Judge Bernard stated: This exception is composed of four elements, all of which must be present if it is to operate in favor of the creditor. In Re Gulf States Marine, 6 B.C.D. 79, 80, 1 C.B.C.2d 650 (W.D.La.1980). Similarly, in In Re McCormick, 6 B.C.D. 889, 891, 5 B.R. 726, 2 C.B.C.2d 1145 (N.D.Ohio 1980), Judge White stated: An otherwise preferential transfer must satisfy all four elements of Section 547(c)(2) to qualify for the exception. A drafter of the Code, Richard Levin, stated in “An Introduction to the Trustee’s Avoiding Powers,” 53 Am.Bankr.L.J. 173 (Spring 1979) that: The second exception to the preference section insulates ordinary trade credit transactions that are kept current. The requirements of the exception are that the incurring of the credit and the payment both be made in the ordinary course of business of the debtor and the creditor, that the transaction be according to ordinary business terms, and that the debtor’s payment to the creditor be made not later than 45 days after the debt was incurred. The exception found in § 547(c)(2) requires all four elements, (A) through (D), to be satisfied in order to prevent avoidance of a preferential transfer of § 547(b). The trustee argues, then, that the requirements of § 547(c)(2)(B) have not been satisfied by virtue of the fact that the January 30, 1981, payment was made more than 45 days after the debt was incurred on December 22, 1980. In In" }, { "docid": "22598840", "title": "", "text": "[Emphasis added] The above comment appears in an article entitled An Introduction to the Trustee’s Avoiding Powers by Richard B. Levin, 53 Am.Bankr.L.J. 173, 187 (1979). The comment is particularly significant since Mr. Levin was on the House Judiciary Committee staff that drafted the Code. The defendant’s security interest was not perfected within ten days after it attached. Tenn.Code Ann. § 47-9-204 (Repl. Vol. 1979). Section 547(c)(3) does not help the defendant. The defendant says that it nevertheless should be protected under § 547(c)(1). In the article cited above Mr. Levin discusses the intent of that exception at page 186: The first exception is a simple one, excepting a transfer that is really not on account of an antecedent [debt]. Literal ly, the transfer must have been intended by the debtor and the creditor to have been a contemporaneous exchange for new value and “in fact a substantially contemporaneous exchange.” No doubt a purchase by the debtor of goods or services with a check, if deemed to be on credit by state law, would be insulated by this exception. Though strictly speaking the transaction may be a credit transaction because the seller does not receive payment until the check is cleared through the debtor’s bank, it is generally considered and intended to be a contemporaneous transaction, and assuming the check is promptly deposited and cleared, is in fact substantially contemporaneous. Here the court must point out some conflict between the first exception and the third exception in § 547(c). The third exception protects a purchase money security interest perfected within ten days after it attaches. The question is whether that is the only exception for purchase money security interests or is the first exception also applicable. The court need not decide. Even if § 547(c)(1) is applied, it does not protect this transaction, for the reasons given below. The defendant argued that “any delay in perfection of the defendant’s security interest occurred in the normal course of business and could not have been avoided by the defendant.” The vehicle bought by the debtor had been used by the seller in" }, { "docid": "11068850", "title": "", "text": "of Section 547(c)(2) to qualify for the exception. A drafter of the Code, Richard Levin, stated in “An Introduction to the Trustee’s Avoiding Powers,” 53 Am.Bankr.L.J. 173 (Spring 1979) that: The second exception to the preference section insulates ordinary trade credit transactions that are kept current. The requirements of the exception are that the incurring of the credit and the payment both be made in the ordinary course of business of the debtor and the creditor, that the transaction be according to ordinary business terms, and that the debtor’s payment to the creditor be made not later than 45 days after the debt was incurred. The exception found in § 547(c)(2) requires all four elements, (A) through (D), to be satisfied in order to prevent avoidance of a preferential transfer of § 547(b). The trustee argues, then, that the requirements of § 547(c)(2)(B) have not been satisfied by virtue of the fact that the January 30, 1981, payment was made more than 45 days after the debt was incurred on December 22, 1980. In In Re McCormick, 6 B.C.D. 889, 891, 2 C.B.C.2d 1145, 5 B.R. 726 (Bkrtcy.N.D.Ohio 1980), the court found an installment debt incurred on “the date on which the debtor originally assumes a legal obligation to pay.” In a case to set aside payments on installment notes as preferences, the court found that the § 547(c)(2) exception was not applicable. The court found the debt was incurred at the time the debtors had received the full consideration; installment payments made more than 45 days after that time did not meet the requirement of § 547(c)(2)(B). In Re Bowen, 6 B.C.D. 254, 3 B.R. 617, 1 C.B.C.2d 1090 (Bkrtcy.E.D.Tenn.1980); also see In Re Keeling, 11 B.R. 361 (Bkrtcy.D.Minn.1981); In Re Donny, 11 B.R. 451 (Bkrtcy.W.D.Wis.1981); Barash v. Public Finance Corp., 658 F.2d 504 (7th Cir. 1981). These cases reflect both the reasonable clear meaning of the time the “debt was incurred” and the apparent intention of the drafters of the Bankruptcy Code. The debtors’ payment of January 30, 1981, was made within 45 days of the time the" }, { "docid": "18731542", "title": "", "text": "Construing “incurred” to mean when a debtor first becomes legally bound to pay comports not only with the plain meaning of the word but also with the fundamental policy of equality of distribution. We do not denigrate the importance of deterring the “race to the courthouse.” But this purpose behind § 547 does not conflict with the fundamental goal of equality of distribution. Rather, the drafters of the Code envisioned the deterrence of the “race of diligence” as furthering the more important goal of equal sharing of assets among creditors. Id at 177 — 78, 5 U.S.Code Cong. & Admin.News at 6138. The § 547(c)(2) exception protects only those normal transactions which open and close within 45 days, regardless of the knowledge of the creditors or the current status of installment debts. We cannot agree with appellees that the Trustee is advancing a novel theory of preferential transfers in these cases. Preferences existed in these circumstances under prior law, but trustees rarely sought recovery because of the difficulty of proving insolvency at the time of transfer or the creditors’ “reasonable cause to believe” that the debtors were insolvent. In fact, this was the impetus behind the 1978 amendments which eliminated the reasonable-cause-to-believe element and established the presumption of insolvency. See H.R. Rep.No.95-595, supra at 178 — 79, 5 U.S. Code Cong. & Admin.News at 6139-40. Nothing in § 547(c)(2) or its history suggests otherwise. There was no express exception for normal business or financial affairs transactions under the old Bankruptcy Act, but courts often allowed an exception for regular business expenses based on the notion that current expenses were not antecedent debts. See In re Peninsula Roofing and Sheet Metal, Inc., 9 B.R. 257, 261-62 (Bkrtcy.W.D.Mich.1981), citing Kaye, Preferences under the New Bankruptcy Code, 54 Am.Bankr.L.J. 197, 209 (1980). The underlying rationale of § 547(c)(2) appears to be the same as the “current expense” rule under former law: “no diminution of the estate, payment not for antecedent debt, and allowing the debtor to stay in business.” Id. at 262. The new Code, however, sets out objective criteria, particularly the 45-day" }, { "docid": "18731544", "title": "", "text": "time limit, for applying the exception. In short, the § 547(c)(2) exception is aimed at transactions which, although they are technically credit transactions, are not intended to remain unpaid for a long time. In this sense, the “normal payments” exception is a variant of the “contemporaneous exchange” exception of § 547(c)(1). The courts in In re McCormick, 5 B.R. 726 (Bkrtcy. N.D. Ohio) and In re Bowen, 3 B.R. 617, 619 (Bkrtcy.E.D.Tenn.1980) considered consumer credit transactions comparable to the cases at bar and reached the same conclusion. Both courts based their analysis on Levin, An Introduction to the Trustee’s Avoiding Powers, 53 Am.Bankr.L.J. 173 (1979). Levin was a member of the House Judiciary Committee staff which drafted the new Code. He explains in his article that § 547(c)(2) insulates ordinary trade credit transactions that are kept current. The 45-day limit was chosen because it reflected a normal trade cycle, and Levin agrees with Collier and our conclusion above that a debt is incurred when it becomes a legally binding obligation of the debtor. Id. at 186. Although the “normal payments” exception in § 547(c)(2) protects consumer transactions as well as trade credit, the installment debts involved here do not fall within the statutory design. The cases in this appeal all involve long-term credit, in contrast to situations where full payment is expected shortly after the obligation was incurred, and in fact payment is made within 45 days. If all regular consumer installment payments are to escape the Trustee’s avoidance powers, Congress, rather than the courts, should provide the relief. IV. Valuation of Collateral The payments here in dispute are preferential to the extent they are credited to the unsecured components of the debts. Payments on secured claims do not diminish the estate, i. e., they do not enable a creditor to receive more than he would under the liquidation provisions of the Code. Section 506(a) provides that a debt is secured only to the extent of the value of the collateral. Any remaining amount is an unsecured claim. Valuation of collateral is thus crucial to determining the amount of the" }, { "docid": "23057887", "title": "", "text": "49 B.R. 152 (Bankr.D.Me.1985). The question thus becomes whether, in amending section 547(c)(2) to eliminate the 45 day limit, Congress intended to fundamentally change the scope of the ordinary course exception. This court is convinced that the better view is that the amendment was intended only to eliminate an artificial time limit, and no more. The 45 day limit was eliminated so that the provisions of the Code would comport with normal business policies. From its inception, section 547(c)(2) was intended to exempt normal trade credit transactions. Levin, “An Introduction to the Trustee’s Avoiding Powers”, 53 Am.Bankr.L.J. 173 (1979). The 45 day provision was intended to reflect a normal trade credit cycle. Id. However, after the enactment of the 1978 Code it became clear that trade credit cycles differ from industry to industry, and that the 45 day limit was arbitrary and overly restrictive. The number of cases in which the question of the 45 day provision has been litigated in one way or another, only a few of which are cited herein, attests to that fact. Nepsco, supra; Ewald Brothers, Inc. v. Kraft, Inc. (In re Ewald Brothers, Inc.) 45 B.R. 52 (Bankr.D.Minn.1984): John v. Reading Body Works (In re A. Fassnaeht & Sons, Inc.) 45 B.R. 209 (Bankr.E.D.Tenn.1984). It also seems unlikely that Congress intended to make a sweeping change in the ordinary course exception, because of the lack of debate and legisla tive history accompanying the amendment. This court is of the opinion that the 1984 amendment removed only an arbitrary time limit, and that the spirit and intent of section 547(c)(2), i.e. the exemption from avoidance of trade credit transactions which are substantially contemporaneous exchanges, remains the same. Thus, in determining what constitutes the ordinary course of business of the debtor and the creditor, the policies behind section 547, and 547(c)(2) in particular, must be borne in mind. The first question under section 547(c)(2) is whether the debt was incurred in the ordinary course of business of the debtor and the creditor. As discussed above, section 547(c)(2) was intended to apply to trade credit transactions, which" }, { "docid": "7867151", "title": "", "text": "the payment was made “not later than 45 days after the debt was incurred ” — had no counterpart in the prior bankruptcy statute. The “ordinary course of business” exception was designed to replace the former judicially-created “current expense” doctrine, whereby current expenses were not regarded as antecedent debts, so that payment thereof was not preferential. Barash v. Public Finance Corp., 658 F.2d 504, 510-11 (7th Cir.1981); Kaye, Preferences Under the New Bankruptcy Code, 54 Am.Bankr. L.J. 197, 201-^-02 (1980). Payment within forty-five days was regarded as the normal trade credit cycle for goods or services furnished during a month, billed at the end thereof, with payment to be received within no more than fifteen days from billing. Barash, supra, 658 F.2d at 511; Levin, An Introduction to the Trustee’s Avoiding Powers, 53 Am.Bankr.L.J. 173, 186-87 (1979). The commentators early noted that troublesome issues may arise in the judicial interpretation of the date that a debt is “incurred”. See, e.g., 4 Collier on Bankruptcy ¶ 547.38, at 547-121 (15th ed. 1982); Kaye, supra, 54 Am.Bankr.L.J. at 203-05. While conceding that the date of invoicing is not necessarily excluded as a statutory test, and while suggesting that inequitable results may follow if the term “incurred” is interpreted literally, they concluded that the more logical view, and one more in view with congressional intent insofar as expressed, is that the debt is incurred on the date that the debtor becomes liable for it— when a resource is consumed or a service performed — , not the date that the creditor chooses to bill the debtor. Id. Further, the interpretation that a debt is “incurred” on the date that the debtor becomes liable to pay it is in accord with the Bankruptcy Code’s definitions of “debt” (“liability on a claim”), section 101(11), and of “claim” (as including “contingent, unmatured and disputed rights to payment”), section 101(4). The subsequent decisional interpretations are in accord with the view that a debt is “incurred” for purposes of section 547(c)(2) (i.e., the “ordinary course of business” exception), on the date that the debtor becomes obligated to pay" }, { "docid": "22144546", "title": "", "text": "the latter interpretation of section 547(c)(2) correctly reflects the intent of Congress. Collier on Bankruptcy supports this view and states that a debt is “incurred” only once and that the 45-day period runs from the time the obligation to pay becomes legally binding. Paragraph 547.38 provides as follows: The issue of when a debt is “incurred” is not trivial. One view is that the debt is not incurred until an invoice is sent or demand for payment is made. The better view is that the debt is incurred when even the debtor obtains a property interest in the consideration exchanged giving rise to the debt. 4 Collier on Bankruptcy, Section 547.38 (15th ed. 1979). Mr. Richard B. Levin, a member of the House Judiciary Committee Staff which drafted the Code also concurs in this interpretation of section 547(c)(2)(B). In his article “An Introduction to the Trustee’s Avoiding Powers” 53 Am. Bankr. L.J. 173 (Spring 1979) Mr. Levin states as follows: The second exception to the preference section insulates ordinary trade credit transactions that are kept current. The requirements of the exception are that the incurring of the credit and the payment both be made in the ordinary course of business of the debtor and the creditor, that the transaction be according to ordinary business terms, and that the debtor’s payment to the creditor be made not later than 45 days after the debt was incurred. Forty-five days was selected as a normal trade cycle. For example, a normal trade credit transaction might be as follows: supplier ships goods during month 1 and sends his bill to the debtor at the end of the month or the very early part of the following month. Normally, that bill would become due, or will be payable in the debtor’s ordinary course of business, by the 10th of month 2. If it is paid by the 15th, then there will be no question that the entire transaction-incurring of the credit and the payment-took place within 45 days. Congress has not defined when a debt is incurred. In the preceding example, of course, there is" }, { "docid": "10164761", "title": "", "text": "and specifically to the interest component of payments on such loans divorced from payments on the principal. Under the old Bankruptcy Act there was no express exception for payment of debts made in the ordinary course of business. There was, however, a judicially-created exception, the current expense rule, which provided an exception for regular business expenses paid by the debtor. Kaye, Preferences Under the New Bankruptcy Code, 54 Am.Bankr.L.J. 197, 201-02 (1980). The current expense rule was premised on the idea that allowing the debtor to remain in business was best for the estate. Another reason for the exception was that current expenses were not considered antecedent debts. Id. According to at least one commentator, the rationale for the current expense rule and the exception set forth in section 547(c)(2) is the same: “no dimunition of the estate, payment not for antecedent debt, and allowing the debtor to stay in business.” Id. Reinforcing this interpretation is another commentator’s description of the ordinary course of business exception as insulating “ordinary trade credit transactions that are kept current.” Levin, An Introduction to the Trustee’s Avoiding Powers, 53 Am. Bankr.L.J. 173, 186 (1979). Levin explains that the 45-day limit was chosen because it reflected a normal trade cycle. Id. The Court finds these descriptions of the purpose and history of the ordinary course exception persuasive and agrees with the Court of Appeals for the Seventh Circuit that the exception was not intended for credit transactions which will remain unpaid for a long time. Barash v. Public Finance Corp., 658 F.2d 504 (7th Cir.1981). See also, In re Goodman Industries, Inc., 21 B.R. 512, 522-23 (Bkrtcy.D.Mass.1982); In re McCormick, 5 B.R. 726 (Bkrtcy.N.D. Ohio 1980); In re Bowen, 3 B.R. 617, 619 (Bkrtcy.E.D.Tenn.1980). The Barash case involved installment payments on consumer credit transactions, which are highly similar to the long-term loans at issue here. Defendants rely on In re Iowa Premium Service Co., Inc., 695 F.2d 1109 (8th Cir.1982), in which a divided en banc Court held that interest payments, as distinguished from principal payments, on a long-term bank loan are subject to exception" } ]

[ { "docid": "23443346", "title": "", "text": "and Unfair Competition § 30.16 (2d ed.1980)). “ ‘[T]o doubt is to deny’ ”; thus, “if there is doubt as to the probability of plaintiffs ultimate success on the merits, the preliminary injunction must be denied.” Id. With this standard in mind, we turn to the question of whether MicroStrategy has demonstrated substantial likelihood of success on the merits in its trademark infringement claim. For a plaintiff to prevail on a claim of trademark infringement, the plaintiff must first and most fundamentally prove that it has a valid and protectable mark. See Petro Stopping Ctrs. v. James River Petroleum, 130 F.3d 88, 91 (4th Cir.1997). The district court held that MicroStrate-gy had failed to show a likelihood of success on this critical, initial burden. The court reasoned that although the record demonstrated that MicroStrategy had registered approximately 50 marks, it failed to register “Intelligence Everywhere” as a mark and, therefore, did not qualify for protection under 15 U.S.C. § 1114(1) (1994 & Supp. V 1999). With respect to MieroS- trategy’s claim under the common law of Virginia, the court concluded that “a careful review” of the record did “not reveal” that MicroStrategy used the term “Intelligence Everywhere” to “identif[y] MicroS-trategy as a source of goods or services.” A. 51. Of course, as MicroStrategy points out, a mark need not be registered to garner federal trademark protection. Rather, “it is common ground that § 43(a) [of the Lanham Act, 15 U.S.C. § 1125 (1994 & Supp. V 1999) ] protects qualifying unregistered trademarks.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). But § 43(a) of the Lanham Act, like Virginia common law, does require that in order to obtain trademark protection “a designation must be proven to perform the job of identification: to identify one source and distinguish it from other sources.” 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 3:3 (4th ed.2000). “Not every single word [or] phrase ... that appears on a label or in an advertisement qualifies as a protectable mark.” See id. If a" } ]

[ { "docid": "12583455", "title": "", "text": "proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Summary judgment may be granted in a trademark dispute when the material, undisputed facts disclose a likelihood of confusion. See Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 935 (4th Cir.1995). On the other hand, we review for abuse of discretion a district court’s award of damages in a trademark dispute. See 15 U.S.C. § 1117(a) (“The court shall assess such profits and damages or cause the same to be assessed under its discretion.”); Shell Oil Co. v. Commercial Petroleum, Inc., 928 F.2d 104, 108-09 (4th Cir.1991). A district court has abused its discretion in making an award of damages if it was “guided by erroneous legal principles” or the award rested “upon a clearly erroneous factual finding.” Morris v. Wachovia Secs., Inc., 448 F.3d 268, 277 (4th Cir.2006) (internal quotation marks omitted). III. Korman makes two contentions of error in this appeal. First, she maintains that the district court erred in concluding that the use of her mark, “THE WINDSHIELD DOCTOR,” constituted trademark infringement and unfair competition on Synergistic’s “GLASS DOCTOR®” mark. Second, she contends that the court abused its discretion in awarding more than $142,000 in damages to Synergistic pursuant to the Lanham Act. We assess these contentions in turn. A. In order to prevail on claims of trademark infringement and unfair competition under the Lanham Act, a plaintiff is obliged to show the court that “it ha[d] a valid, protectible trademark and that the defendant’s use of a colorable imitation of the trademark is likely to cause confusion among consumers.” Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 930 (4th Cir.1995). In this proceeding, the parties have stipulated that Synergistic’s mark is protectible because it is incontestable. See Stipulations ¶ 31. This stipulation of “incontestability provides a strong" }, { "docid": "22461583", "title": "", "text": "distinguish [a producer's] goods . .. from those manufactured or sold by others and to indicate the source of the goods. .. .\" 15 U.S.C. § 1127. The owner of a trademark may apply to register it by filing inter alia \"a drawing of the mark\" in the United States Patent and Trademark Office. Lanham Act § 1(a)(1)(B), 15 U.S.C. § 1051(a)(1)(B). Among other privileges, registration of a mark \"enables the owner to sue an infringer under § 32, 15 U.S.C. § 1114,\" and \"entitles the owner to a presumption that its mark is valid, see § 7(b), 15 U.S.C. § 1057(b).\" Wal-Mart Stores v. Samara Bros., 529 U.s. 205, 209, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000). Yurman has not registered what it seeks to protect as a trademark in this case, so it is proceeding under § 43(a) of the Lanham Act, which prohibits a person from using \"any word, term, name, symbol, or device, or any combination thereof\" that is \"likely to cause confusion . . as to the origin, sponsorship, or approval of his or her goods.\" 15 U.S.C. § 1125(a). Although § 43 proscribes \"a broader range of practices\" than does the cause of action for infringement of registered marks, \"the general principles qualifying a mark for registration under § 2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under § 43(a).\" Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). Accordingly, both § 2 and § 43(a) have been construed to embrace not just source-identifying \"word marks, such as `Nike,' and symbol marks, such as Nike's `swoosh' symbol, but also `trade dress.'\" Samara Bros., 529 U.S. at 209, 120 S.Ct. 1339. Trade dress \"originally included only the packaging, or `dressing,' of a product,'~ but it has been expanded to encompass what is at issue in this case: the design or configuration of the product itself. Id. We exercise \"particular `caution,' when extending protection to product designs.\" Landscape Forms, Inc. v. Columbia Cascade Co.," }, { "docid": "10507012", "title": "", "text": "See Dantanna's, 611 F.3d at 773 n. 5 (citing Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992)). \"[T]he use of another's unregistered, i.e., common law, trademark can constitute a violation of § 43(a) where the alleged unregistered trademarks used by the plaintiff are so associated with its goods that the use of the same or similar marks by another company constitutes a false representation that its goods came from the same source.” Id. at 773 (internal quotation marks and citation omitted). \"However, only those marks that are capable of distinguishing the owner’s goods from those of others, i.e., that are sufficiently 'distinctive,' are eligible for federal registration or protection as common law marks under the Lanham Act.” Id.; see also McCarthy on Trademarks and Unfair Competition (hereafter, \"McCarthy”) § 27:13 (4th ed. 2008). Accordingly, \"the general principles qualifying a mark for registration under § 2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under § 43(a).” Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 210, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000) (quoting Two Pesos, Inc., 505 U.S. at 768, 112 S.Ct. 2753). . Some courts have held that in the Internet context, similarity of the marks, relatedness of the goods or services, and simultaneous use of the Internet as a marketing channel are the most important factors in evaluating the likelihood of confusion. See GoTo.com v. Walt Disney Co., 202 F.3d 1199, 1205 (9th Cir.2000) (citing Brookfield Commc’ns, Inc. v. West Coast Entm't Corp., 174 F.3d 1036, 1054 n. 16 (9th Cir.1999)). . The Eleventh Circuit adopted as binding precedent, all decisions the former Fifth Circuit made prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981). During oral argument, Plaintiff's counsel stated that the VASER mark has become \"incontestable” pursuant to 15 U.S.C. 1065. See 15 U.S.C. § 1115(b) (\"To the extent that the right to use the registered mark has become incontestable under section 1065 of this" }, { "docid": "22711835", "title": "", "text": "admissions on file, together with ... affidavits.... ” Fed.R.Civ.P. 56(c). We also note that the District Court failed to consider plaintiffs’ beneficial ownership claim under the Copyright Act in light of our holding in Cortner v. Israel, 732 F.2d 267, 270-71 (2d Cir.1984), and their assertion of a right to licensing fees arising out of the public performance of their digital recordings, both set forth in Count VII of the Amended Complaint. This may have been due in part to an ambiguity in the pleading. Count VII is titled “Infringement Pursuant to 17 U.S.C. [§] 501(b),” but it does not clearly allege copyright infringement and also includes an allegation of entitlement to licensing fees pursuant to 17 U.S.C. § 114. Am. Compl. ¶¶ 97-100. We leave to the sound discretion of the District Court whether to consider this claim as presented in the Amended Complaint or whether to allow plaintiffs leave to replead. II. The District Court also dismissed plaintiffs’ federal trademark claim brought pursuant to section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), which arises out of MP3.com’s alleged use of plaintiffs’ names and likenesses on its Internet website. Section 43(a) prohibits any misrepresentation likely to cause confusion about the source of a product or service, in particular the use by any person of any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin ..likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association ... with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person .... 15 U.S.C. § 1125(a)(1) (2000). Section 43(a) is a broad federal unfair competition provision which protects unregistered trademarks similar to the way that section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1), protects registered marks. See Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 209-10, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000); Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992)." }, { "docid": "11295545", "title": "", "text": "defendant could establish a proprietary right to the term “opening day,” plaintiffs’ use of the term in connection with products and promotions relating to the opening day of the baseball season does not, as a matter of law, create a likelihood of confusion with defendant’s use of the term on clothing. The term “opening day” is not a registered trademark. As the Supreme Court has stated, “it is common ground that § 43(a) protects qualifying unregistered trademarks and that the general principles qualifying a mark for registration under § 2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under § 43(a).” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (cited in Talk To Me Products, Inc. v. Larami Corporation, 804 F.Supp. 555, 558 (S.D.N.Y.1992)). Section 43(a) of the Lanham Act provides a cause of action against any person, who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof ... which ... is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person. 15 U.S.C. § 1125(l)(a). The Lanham Act defines “use in commerce” as the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark. [A] mark shall be deemed to be in use in commerce ... on goods when ... it is placed in any manner on the goods ... or the displays associated therewith or on the tags or labels affixed thereto ... and the goods are sold or transported in commerce. 15 U.S.C. § 1127. In order to prevail on a Lanham Act infringement claim, a party must satisfy two elements: it must show that “it has a valid" }, { "docid": "14256442", "title": "", "text": "(5) cybersquatting, id. § 1125(d); and (6) trade dress infringement, id. § 1125(a). The parties filed cross-motions for summary judgment, and the district court judge denied Plaintiffs motion and granted Defendants’ motion on all six counts. UTLM appeals only the district court’s ruling on the trademark infringement, unfair competition, and cy-bersquatting claims. Furthermore, UTLM appeals with regard to only one of its trademarks, UTAH LIGHTHOUSE. II. DISCUSSION A. Standard of Review We review a district court’s grant of summary judgment de novo, and apply the same legal standard as the district court. MediaNews Group, Inc. v. McCarthey, 494 F.3d 1254, 1260 (10th Cir.2007). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We consider the factual record, together with all reasonable inferences derived therefrom, in the light most favorable to the nonmoving party and we do not weigh the evidence or make credibility determinations. Jones v. Barnhart, 349 F.3d 1260, 1265 (10th Cir.2003). B. Trademark Infringement and Unfair Competition Trademark infringement is a type of unfair competition; the two claims have virtually identical elements and are properly addressed together as an action brought under 15 U.S.C. § 1125(a)(1)(B), commonly known as section 43 of the Lanham Act. See Donchez v. Coors Brewing Co., 392 F.3d 1211, 1219 (10th Cir.2004); cf. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992); Heaton Distrib. Co. v. Union Tank Car Co., 387 F.2d 477 (8th Cir.1967) (“Trademark infringement is but part of broader law of unfair competition; and facts supporting suit for infringement and one for unfair competition are substantially identical.”). Because UTLM’s trademark, UTAH LIGHTHOUSE, was not registered at the time Allen Wyatt created the Wyatt website in November 2003, UTLM must show that the mark is protectable. See Two Pesos, 505 U.S. at 768, 112 S.Ct. 2753; Donchez, 392 F.3d at 1215. In addition, UTLM must demonstrate that" }, { "docid": "18231475", "title": "", "text": "plaintiffs rights in the name, trademark, and skills challenge, and also seeks a permanent injunction enjoining defendants from making any commercial use of Kids Golfs mark, damages, costs, and attorney’s fees. 1. Lanham Act Claim Trademarks are “any word, name, symbol, or device, or any combination thereof [used] to identify and distinguish [one’s] goods ... from those manufactured or sold by others and to indicate the source of the goods.” 15 U.S.C. § 1127. A plaintiff seeking to prevail on a trademark infringement claim must show 1) that he had a valid trademark and 2) that the defendant had adopted an identical or similar mark such that consumers were likely to confuse the two. See 15 U.S.C. § 1125(a); Lone Star Steakhouse & Saloon, Inc. v. Longhorn Steaks, Inc., 106 F.3d 355, 358 (11th Cir.1997). Kids Golf does not own a federal trademark registration for Drive Pitch & Putt, either alone or in connection with any other words or design. However, registration of a trademark is not a prerequisite to an action under the Lanham Act. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). Defendant argues that before Kids Golf can recover under any of its federal, state, or common law claims and before a court engages in a likelihood of confusion analysis, Kids Golf must show that it has a protectible interest in the trademark. See Investacorp, Inc. v. Arabian Investment Banking Corp. (Investcorp) E.C., 931 F.2d 1519, 1522 (11th Cir.1991). Kids Golfmust, at a minimum, demonstrate that Drive Pitch & Putt is descriptive and has acquired secondary meaning. See Two Pesos, 505 U.S. at 769, 112 S.Ct. 2753. Trademarks are classified into four categories, in order of increasing strength: 1) generic — marks that suggest the basic nature of the product or service; 2) descriptive — marks that identify the characteristic or quality of a product or service; 3) sug gestive — marks that suggest characteristics of the product or service and require an effort of the imagination by the consumer in order to be understood as" }, { "docid": "19780997", "title": "", "text": "F.Supp.2d at 649 n. 1. Thus, even if D’Am-ato had used another domain name, such as urww.damatoracing.com, he would still be liable for his commercial use of Audi’s trademarks. For the reasons above, we hold that the district court did not abuse its discretion when it rejected D’Amato’s Rule 56(f) affidavit. IV A moving party is entitled to summary judgment as a matter of law “ ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.’ ” Bennett v. Eastpointe, 410 F.3d 810, 817 (6th Cir.2005) (quoting Fed.R.Civ.P. 56(c)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the moving party meets its burden, the burden shifts to the nonmoving party to come forth with evidence demonstrating that there is a genuine issue of material fact, and therefore the case should go to trial. Fed.R.Civ.P. 56(e); Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 145 (6th Cir.1997). We review de novo a district court’s grant of summary judgment, construing the facts in the light most favorable to the nonmoving party. Bennett, 410 F.3d at 817. A. Trademark Infringement Claim Under both common law and federal law, “a trademark is a designation used ‘to identify and distinguish’ the goods of a person.” J. Thomas McCarthy, McCarthy ON TRADEMARKS, § 3.1 (4th ed.2004) (quoting 15 U.S.C. § 1127). Under the Lanham Act, 15 U.S.C. § 1051 et seq., we use the same test to decide whether there has been trademark infringement, unfair competition, or false designation of origin: the likelihood of confusion between the two marks. Two Pesos v. Taco Cabana, 505 U.S. 763, 780, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992)." }, { "docid": "19798345", "title": "", "text": "her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. § 1125(a). . In its summary judgment order, the district court erroneously stated that Plaintiff brought this action under § 32(a) of the Lanham Act, 15 U.S.C. § 1114(1), rather than § 43(a), 15 U.S.C. § 1125(a). Section 32(a) creates a cause of action for the infringement of a registered mark, whereas § 43(a) protects qualifying unregistered trademarks. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 2757, 120 L.Ed.2d 615 (1992). This error is irrelevant, however, because the district court based its grant of summary judgment on the likelihood-of-confusion prong of § 32(a), which requires the consideration of the same seven factors as § 43(a)’s likelihood-of-confusion test, and therefore applied the correct legal analysis to Plaintiff’s infringement claim. See Ross Bicycles, Inc. v. Cycles USA, Inc., 765 F.2d 1502, 1503-04 (11th Cir.1985) (\"The factors relevant to establishing [a likelihood of confusion with respect to false designation of origin under 15 U.S.C. § 1125(a)] are identical to the factors relevant to establishing a likelihood of confusion with respect to trademark infringement under 15 U.S.C. § 1114.” (citation omitted)). . Nonetheless, we revisit the issue of secondary meaning in evaluating the first factor in our circuit's likelihood-of-confusion test because secondary meaning is relevant to both elements of a Lanham Act claim. Whether a mark is generic, descriptive, suggestive, or arbitrary also plays into its strength, which is the first factor of our likelihood-of-confusion inquiry. See Welding Servs., 509 F.3d at 1360; J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 11:82 (4th ed.2010) (explaining that secondary meaning is an issue of validity for noninherently distinctive marks and also an issue of strength/distinctiveness in the likelihood-of-confusion analysis for any kind of mark). . We also summarily dismiss Plaintiff’s argument that the district court misapplied Rule 56(c)’s summary judgment standard by improperly weighing the evidence, as evidenced by the court’s" }, { "docid": "9810734", "title": "", "text": "district court relied on three specific bases to support its award of .sanctions. The district court’s first ground for awarding sanctions was that at the time the plaintiffs commenced this action for trademark infringement they did not have a federally registered trademark. Rather, “the trademark for the name Battscan was registered by Plaintiff Waymark on September 14, 1999, more than one year after Plaintiffs filed their complaint alleging trademark infringement.” Id. But the complaint here evidently sought relief under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1), which provides a remedy for infringement of both registered and unregistered trademarks. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992); Planetary Motion, Inc., 261 F.3d at 1193, 59 USPQ2d at 1897. The plaintiffs alleged in their original complaint that “[t]he BATTSCAN name is identified with Plaintiffs and the BATT-SCAN products have a distinctive trade dress, identifying Plaintiffs as the source of these products,” (Compl. at 6), i.e., that they attained trademark rights as a result of use. They did not allege registration and admitted in interrogatories that the trademark was not registered under federal law. In opposing Porta Systems’ motion for summary judgment or dismissal for lack of standing, the plaintiffs noted, “Attached hereto, as Exhibit B, is a true and correct copy of Federal Trademark Registration 2,277,975 for BATTSCAN issued September 14, 1999 to Waymark Corporation.” The unarticulated theory apparently was that the federal mark was evidence of prior use. (Appellants’ Br. at 39-40.) There has been no showing that the claimed use of the unregistered trademark could not form the basis for a proper Lanham Act claim, since the plaintiffs alleged that the mark was distinctive and identified with them. See Planetary Motion, 261 F.3d at 1195, 59 USPQ2d at 1897 (use of unregistered mark sufficient for Lanham Act suit when there is “[e]vidence showing, first, adoption, and second, use in a way sufficiently public to identify or distinguish the market goods in an appropriate segment of the public mind as those of the adopter of the mark”) (internal" }, { "docid": "4493722", "title": "", "text": "fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In evaluating a motion for summary judgment, the court views the record in the light most favorable to the nonmoving party. Lone Star, 43 F.3d at 928. III. Section 43(a) of the Lanham Act, prohibiting the use of false designations of origin, protects against service mark infringement even if the mark has not been federally registered. See 15 U.S.C. § 1125(a); MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 341 (4th Cir.2001) (citing Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992)); Ale House Mgmt. Inc. v. Raleigh Ale House, Inc., 205 F.3d 137, 140 (4th Cir.2000). A party claiming prior use of a trade or service mark may, as LLC does here, seek to enjoin a defendant’s use of its registered mark and cancel that defendant’s registration of the mark under § 14 of the Lanham Act, 15 U.S.C. § 1064. See Marcon, Ltd. v. Helena Rubenstein, Inc., 694 F.2d 953, 956 (4th Cir.1982). However, before a federal registration may be cancelled, the plaintiff must prevail in its infringement action. In order to prevail in an action for service mark infringement and unfair competition under § 43(a) of the Lanham Act, a plaintiff must “first and most fundamentally prove that it has a valid and protectable mark.” MicroStrategy, 245 F.3d at 341. If the plaintiffs mark is deemed to be protectable, it still cannot prevail unless it can show that the defendant’s use of an identical or similar mark is likely to cause confusion among consumers. Perini 915 F.2d at 124. Here, summary judgment was appropriate because LLC cannot clear the first hurdle; that is, it cannot show that its mark, in relation to the executive recruiting services it provides, is entitled to service mark protection. To ascertain whether a mark is protected, we must determine whether it is 1) generic, 2) descriptive, 3) suggestive or 4) arbitrary or fanciful. Perini, 915 F.2d at 124 (citing Abercrombie & Fitch Co. v. Hunting" }, { "docid": "4493721", "title": "", "text": "of LLC’s complaint with prejudice and ordering the matter to proceed to trial on Dot-Com’s counterclaims. A month later, Dot-Com stipulated to the dismissal of its counterclaims. In March 2001, Dot Com moved for an award of costs under Federal Rule of Civil Procedure 54(d). The district court, after a hearing, awarded DotCom $2,482 in costs. This appeal followed. II. LLC’s main argument on appeal is that the district court erred in finding that its mark was not entitled to service mark protection, and thus erred in granting summary judgment in favor of Dot-Com. We review a district court’s grant of summary judgment de novo, applying the same standards employed by the district court. Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 928 (4th Cir.1995); Perini Corp. v. Perini Construction, Inc., 915 F.2d 121, 123-24 (4th Cir.1990). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In evaluating a motion for summary judgment, the court views the record in the light most favorable to the nonmoving party. Lone Star, 43 F.3d at 928. III. Section 43(a) of the Lanham Act, prohibiting the use of false designations of origin, protects against service mark infringement even if the mark has not been federally registered. See 15 U.S.C. § 1125(a); MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 341 (4th Cir.2001) (citing Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992)); Ale House Mgmt. Inc. v. Raleigh Ale House, Inc., 205 F.3d 137, 140 (4th Cir.2000). A party claiming prior use of a trade or service mark may, as LLC does here, seek to enjoin a defendant’s use of its registered mark and cancel that defendant’s registration of the mark under § 14 of the Lanham Act, 15 U.S.C. § 1064. See Marcon, Ltd. v. Helena Rubenstein," }, { "docid": "19767612", "title": "", "text": "Pro-Line Door Sys., Inc., 88 F.3d 169, 171 (7th Cir.1996) (“[A]s with any question of fact, [the classification of a mark] can be resolved on summary judgment if the evidence is so one-sided that there can be no doubt about how the question should be answered.”). “Summary judgment is improper if there is any evidence in the record from which a fair inference may be drawn on a material issue of fact in favor of the party opposing summary judgment.” Black & Decker, 944 F.Supp. at 224 (citing Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994)). C. Lanham Act Standards Section 43(a) of the Lanham Act protects owners of both registered and unregistered marks from the use in commerce of any word, term, name or symbol that is likely to cause confusion as to the origin or sponsorship of goods or services. 15 U.S.C. § 1125(a); see Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (“[I]t is common ground that § 43(a) protects qualifying unregistered trademarks and that the general principles qualifying a mark for registration under § 2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under § 43(a).”). To prevail on a claim under Section 43(a), a plaintiff must show that (1) it has a valid trademark entitled to protection, and (2) the defendant’s mark infringes on the plaintiff's mark by causing a likelihood of confusion among consumers as to the origin or sponsorship of its product. See Time, Inc. v. Petersen Publ’g Co., 173 F.3d 113, 117 (2d Cir.1999); Genesee Brewing, 124 F.3d at 142; Arrow Fastener Co. v. Stanley Works, 59 F.3d 384, 390 (2d Cir.1995). Where, as here, the plaintiffs mark is unregistered, the plaintiff bears the burden of proving that its mark is valid, which includes the burden of rebutting a defense that the unregistered mark is “generic” and un-protectable. See Reese Publ’g, 620 F.2d at 11; Horizon Mills, 161 F.Supp.2d at 215 n. 8. If plaintiff cannot" }, { "docid": "15254303", "title": "", "text": "than in good faith. The prints, the envelopes which contain them, and the narrative materials which accompany them clearly identify Rush as the source of the print. Woods is mentioned only to describe the content of the print. The district court properly granted summary judgment on ETW’s claim for violation of its registered mark, “Tiger Woods,” on the grounds that the claim was barred by the fair use defense as a matter of law. III. Trademark Claims Under 15 U.S.C. § 1125(a) Based on the Unauthorized Use of the Likeness of Tiger Woods Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), provides “a right of action to persons engaged in interstate and foreign commerce, against deceptive and misleading use of words, names, symbols, or devices, or any combination thereof, which have been adopted by a ... merchant to identify his goods and distinguish them from those manufactured by others[.]” Federal-Mogul-Bower Bearings, Inc. v. Azoff, 313 F.2d 405, 408 (6th Cir.1963); see also Frisch’s Restaurant, Inc. v. Shoney’s, Inc., 759 F.2d 1261, 1264 (6th Cir.1985); Frisch’s Restaurants, Inc. v. Elby’s Big Boy of Steubenville, Inc., 670 F.2d 642, 647 (6th Cir.), cert. denied, 459 U.S. 916, 103 S.Ct. 231, 74 L.Ed.2d 182 (1982). ETW has registered Woods’s name as a trademark, but it has not registered any image or likeness of Woods. Nevertheless, ETW claims to have trademark rights in Woods’s image and likeness. Section 43(a) of the Lanham Act provides a federal cause of action for infringement of an unregistered trademark which affords such marks essentially the same protection as those that are registered. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992)(“[I]t is common ground that § 43(a) protects qualifying unregistered trademarks and that the general principles qualifying a mark for registration under § 2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under § 43(a).”). The Lanham Act defines a trademark as including “any word, name, symbol, or device, or any combination thereof’ used" }, { "docid": "23485909", "title": "", "text": "its request for damages be denied for lack of specificity. Techsplosion served its appeal brief on May 22, 2000. On June 9, 2000, the district court entered an order adopting the report and recommendation in its entirety. On July 7, 2000, Techsplo sion filed a Notice of Appeal from the order adopting the magistrate judge’s report and recommendation. Standard of Review Review of a district court’s grant of summary judgment is de novo, with all facts and reasonable inferences therefrom reviewed in the light most favorable to the non-moving party. Carnival Brand Seafood Co. v. Carnival Brands, Inc., 187 F.3d 1307, 1309 (11th Cir.1999). Discussion Section 43(a) of the Lanham Act forbids unfair trade practices involving infringement of trade dress, service marks, or trademarks, even in the absence of federal trademark registration. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). Section 43(a) is remedial in nature and should be interpreted and applied broadly so as to effectuate its remedial purpose. Montgomery v. Noga, 168 F.3d 1282, 1300 & n. 29 (11th Cir.1999) (citing Warner Bros., Inc. v. Gay Toys, Inc., 658 F.2d 76, 79 (2d Cir.1981)). To prevail under this section, a claimant must show (1) that it had prior rights to the mark at issue and (2) that the defendant had adopted a mark or name that was the same, or confusingly similar to its mark, such that consumers were likely to confuse the two. Lone Star Steakhouse & Saloon, Inc. v. Longhorn Steaks, Inc., 106 F.3d 355, 360 (11th Cir.1997) (citing Conagra Inc. v. Singleton, 743 F.2d 1508, 1512 (11th Cir.1984)), modified, 122 F.3d 1379 (1997). Appellants argue that the district court erred in finding that Planetary Motion had established both elements. Appellants also dispute the scope of injunctive relief, as well as the award of attorney fees and costs. I. Prior Use in Commerce Under common law, trademark ownership rights are “appropriated only through actual prior use in commerce.” Tally-Ho, Inc. v. Coast Community College Dist., 889 F.2d 1018, 1022 (11th Cir.1989) (citation omitted). Under the Lanham" }, { "docid": "11295544", "title": "", "text": "in favor of the nonmoving party. Gallo v. Prudential Residential Services, Ltd., 22 F.3d 1219, 1224 (2d Cir.1994). The burden of demonstrating that summary judgment should be granted is significant in that summary judgment is a “drastic devise, since its prophylactic function, when exercised, cuts off a party’s right to present his case to the jury.” Nationwide Life Ins. Co. v. Bankers Leasing Ass’n, Inc., 182 F.3d 157, 160 (2d Cir.1999), quoting Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985). A. Trademark Infringement Defendant argues that in utilizing the term “opening day,” plaintiffs have infringed defendant’s trademark to that term. Plaintiffs contend that they are entitled to summary judgment on defendant’s trademark infringement claim because: defendant has not made sufficient use of the term “opening day” so as to create trademark rights to the term; plaintiffs’ use of the term in connection with the first day of games of the Major League Baseball season is a descriptive fair use under Section 33(b)(4) of the Lanham Act; and even if defendant could establish a proprietary right to the term “opening day,” plaintiffs’ use of the term in connection with products and promotions relating to the opening day of the baseball season does not, as a matter of law, create a likelihood of confusion with defendant’s use of the term on clothing. The term “opening day” is not a registered trademark. As the Supreme Court has stated, “it is common ground that § 43(a) protects qualifying unregistered trademarks and that the general principles qualifying a mark for registration under § 2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under § 43(a).” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (cited in Talk To Me Products, Inc. v. Larami Corporation, 804 F.Supp. 555, 558 (S.D.N.Y.1992)). Section 43(a) of the Lanham Act provides a cause of action against any person, who, on or in connection with any goods or services, or any container for goods," }, { "docid": "9944869", "title": "", "text": "Cir.2004). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). We “view the evidence, and draw reasonable inferences therefrom, in the light most favorable to the nonmov-ing party.” Combs v. Pricewaterhousecoopers, LLP, 382 F.3d 1196, 1199 (10th Cir.2004). Service mark-related claims In the final pretrial order, Donchez characterized three of the claims in his complaint as being dependent on his service mark rights. These three claims included: service mark infringement under Colo.Rev.Stat. § 7-70-111 (the second claim for relief in the complaint); common law service mark infringement (the third claim for relief in the complaint); and unfair competition under § 43(a) of the Lan-ham Act, 15 U.S.C. § 1125(a) (the fourth claim for relief in the complaint). We address these claims in reverse order. Unfair competition in violation of § 4.3(a) of Lanham Act “Section 43(a) of the Lanham Act, prohibiting the use of false designations of origin, protects against service mark infringement even if the mark has not been federally registered.” U.S. Search, LLC v. U.S. Search.com, Inc., 300 F.3d 517, 522 (4th Cir.2002). To prevail in an action for unfair competition under § 43(a), “a plaintiff must establish that (1) her mark is protectable, and (2) the defendant’s use of [an identical or similar] mark is likely to cause confusion among consumers.” Packman v. Chicago Tribune Co., 267 F.3d 628, 638 (7th Cir.2001); see U.S. Search, 300 F.3d at 523. For the reasons that follow, we conclude Donchez has failed to present sufficient evidence to allow a reasonable jury to find in his favor on the first of these elements, and thus the dis trict court properly granted summary judgment in favor of defendants. Federal law defines a service mark to include “any word ... or any combination thereof ... used by a person ... to identify and distinguish the services of one person, including a" }, { "docid": "19798316", "title": "", "text": "which is likely to cause confusion ... as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.” 15 U.S.C. § 1125(a). To establish a prima facie case of trademark infringement under § 43(a), a plaintiff must show “(1) that it had trademark rights in the mark or name at issue and (2) that the other party had adopted a mark or name that was the same, or confusingly similar to its mark, such that consumers were likely to confuse the two.” Lone Star Steakhouse & Saloon, Inc. v. Longhorn Steaks, Inc., 106 F.3d 355, 358 (11th Cir.1997). Plaintiffs allegation under the Lanham Act is that “Dan Tana’s” is a trade name in which he has common-law trademark rights and that Defendants are unlawfully infringing on those rights by using and registering the name “Dantanna’s” in connection with the operation of their Atlanta restaurants. To satisfy the first element of § 43(a) — proof of a valid trademark — a plaintiff need not have a registered mark. We have recognized that “the use of another’s unregistered, ie., common law, trademark can constitute a violation of § 43(a) where the alleged unregistered trademarks used by the plaintiff are so associated with its goods that the use of the same or similar marks by another company constitutes a false representation that its goods came from the same source.” Conagra, Inc. v. Singleton, 743 F.2d 1508, 1512-13 (11th Cir.1984) (internal quotations and citations omitted). However, only those marks that are capable of distinguishing the owner’s goods from those of others, i.e., that are sufficiently “distinctive,” are eligible for federal registration or protection as common law marks under the Lanham Act. 15 U.S.C. § 1052(e), (f); Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 2757, 120 L.Ed.2d 615 (1992); Coach House Rest., Inc. v. Coach & Six Rests., Inc., 934 F.2d 1551, 1559 (11th Cir.1991). Our circuit recognizes four categories of distinctiveness, listed in ascending order of strength: “(1) generic — marks that suggest the basic nature of the product" }, { "docid": "23005823", "title": "", "text": "both trademark infringement and unfair competition claims) establishes irreparable harm. See Hasbro, Inc. v. Lanard Toys, Ltd., 858 F.2d 70, 73 (2d Cir.1988). II. Likelihood of Success on the Merits Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), creates a federal private cause of action for injunctive relief and damages against a manufacturer who “uses in commerce any word, term, name, symbol, or device” or “any false designation of origin” that is “likely to cause confusion” as to the origin of its product. Section 43(a) may protect unregistered trademarks from infringement, and even offers a degree of protection from unfair competition for “unregistrable marks,” such as generic words that have acquired significant secondary meaning. A. Unregistered Trademark Infringement Section 43(a) may “protect[] an unregistered trademark ... against infringement.” Grupke v. Linda Lori Sportswear, Inc., 921 F.Supp. 987, 994 (E.D.N.Y.1996) (citing Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 168 (2d Cir.1991)). “[T]he general principles qualifying a mark for registration under § 2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under § 43(a).” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 2757, 120 L.Ed.2d 615 (1992). Thus, Genesee will prevail on the merits of its unregistered trademark infringement claim if it can show that “it has a valid [trade]mark entitled to protection and that the defendant’s use of it is likely to cause confusion.” Arrow Fastener Co. v. Stanley Works, 59 F.3d 384, 390 (2d Cir.1995) (citation and internal quotation marks omitted). We agree with the district court that Gene-see does not have a trademark in the words “Honey Brown” that can be protected against appropriation by Stroh. Accordingly, we affirm without reaching the question of likelihood of confusion. A trademark is “any word, name, symbol, or device, or any combination thereof’ used by a person “to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.”" }, { "docid": "23482363", "title": "", "text": "use of the Bukhara mark for restaurants does not raise a material issue of fact regarding its intent to resume similar use of the mark in the United States. Because ITC plainly abandoned its right to the Bukhara mark for restaurant services in the United States, we affirm the award of summary judgment in favor of defendants on ITC’s federal and state infringement claims. C. Unfair Competition 1. Federal Claim Under Section 13(a)(1)(A) of the Lanham Act ITC claims that defendants violated section 43(a)(1)(A) of the Lanham Act by engaging in unfair competition in the use of its Bukhara mark and its related trade dress. Section 43(a)(1)(A) allows the producer of a product or service to initiate a cause of action against a person who uses “any word, term name, symbol, or device, or any combination thereof ... which ... is likely to cause confusion ... as to the origin, sponsorship, or approval of [the producer’s] ... services.” 15 U.S.C. § 1125(a)(1)(A). This protection is broader than that afforded by section 32(l)(a), which prohibits only infringement of marks actually registered with the Patent and Trademark Office. See Two Pesos v. Taco Cabana, 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (“Section 43(a) prohibits a broader range of practices than does § 32, which applies to registered marks, but it is common ground that § 43(a) protects qualifying unregistered trademarks” (internal citations and quotation marks omitted)); accord Chambers v. Time Warner, Inc., 282 F.3d 147, 155 (2d Cir.2002). To succeed on a section 43(a)(1)(A) claim, a plaintiff must prove (1) that the mark or dress is distinctive as to the source of the good or service at issue, and (2) that there is the likelihood of confusion between the plaintiffs good or service and that of the defendant. See Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 115 (2d Cir.2001) (citing Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 210, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000)); see also Two Pesos v. Taco Cabana, 505 U.S. at 768, 112 S.Ct. 2753; Louis Vuitton Malletier v. Dooney" } ]

[ { "docid": "23079249", "title": "", "text": "of the Fourteenth Amendment; The general statement in the New York Act of the fields of labor it includes, taken in connection with the work not covered, indicates legislative intention to reach nearly all private employers of women. The Act . does not extend to men. It does extend to boys and girls under the age of 21 years but there is here involved no question as to its validity in respect of wages to be prescribed for them. Relator’s petition for the writ shows that the charge against him is that as manager of a laundry he “disobeyed a mandatory order prescribing certain minimum wages for certain adult women employees of the said laundry.” The rights of. no other class of workers are here involved. Upon the face of the act the question arises whether the State may impose upon the employers state-made minimum wage rates for all competent experienced women workers whom they may have in their service. That question involves another one. It is:' Whether the State has power similarly to.subject to state-made wages all adult women employed in trade, industry or business, other, than house and farm work. These were the questions decided in the Adkins case. So far at least as concerns the validity of the enactment under consideration, the restraint imposed by the due process clause of the Fourteenth Amendment upon legislative power of the State is the same as that imposed by the corresponding provision of the Fifth Amendment upon the legislative power of the United States. This court’s opinion shows (pp. 545, 546): The right to make contracts about one’s affairs is a part of the liberty protected by the due process clause. Within this liberty are provisions of contracts between employer and employee fixing the wages to be paid. In making contracts of employment, generally speaking, the parties have equal right to obtain from each other the best terms they can by private bargaining. Legislative abridgement of that freedom can only be justified by the existence of exceptional circumstances. Freedom of contract is the general rule and restraint the exception. This" } ]

[ { "docid": "22641551", "title": "", "text": "respect identical with the statute involved in the Adkins case. Such vices as existed in the latter are present in the former. And if the Adkins case was properly decided, as we who join in this opinion think it was, it necessarily follows that the Washington statute is invalid. In support of minimum-wage legislation it has been urged, on the one hand, that great benefits will result in favor of underpaid labor, and, on the other hand, that the danger of such legislation is that the minimum will tend to become the maximum and thus bring down the earnings of the more efficient toward the level of the less-efficient employees. But with these speculations we have nothing to do. We are concerned only with the question of constitutionality. That the clause of the Fourteenth Amendment which forbids a state to deprive any person of life, liberty or property without due process of law includes freedom of contract is so well settled as to be no longer open to question. Nor reasonably can it be disputed that contracts of employment of labor are included in the rule. Adair v. United States, 208 U. S. 161, 174-175; Coppage v. Kansas, 236 U. S. 1, 10, 14. In the first of these cases, Mr. Justice Harlan, speaking for the court, said, “The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell. ... In all such particulars the employer and employe have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land.” In the Adkins case we referred to this language, and said that while there was no such thing as absolute freedom of contract, but that it was subject to a great variety of restraints, nevertheless, freedom of contract was the general rule and restraint the exception;" }, { "docid": "21882269", "title": "", "text": "with the protec tion which the due process of law clause of the Fourteenth Amendment affords to the liberty of contract and rights of property. The question was answered in the negative and the Act was held invalid in so far as it gives that authority. The subject was much considered. and the principle's which were recognized and applied were distinctly stated. At the outset the Court pointed out that the Act assumes as a “ necessary postulate ”• that the State, in the interest of the public, “ may compel those engaged in the manufacture of food and clothing, and the production of fuel, whether owners or workers, to. continue in their business or employment on terms fixed by an agency of the State if they cannot agree.” Then, after referring to the limited privilege of withdrawing from the business or employment which the Act accords to owners and employees who may be dissatisfied with the determination, the Court said [534]: “ These qualifications do not change the essence of the áct. It curtails the right of the employer on the one hand, and of the employee on the other, to contract about his affairs. This is part of the liberty of the individual protected by the guarantee of the due process clause of the Fourteenth Amendment. Meyer v. Nebraska, ante, 390. While there is no such thing as absolute freedom of contract and it is subject to a variety of restraints, they must not be arbitrary or unreasonable. Freedom is the general-rule, and restraint the exception. The legislative authority to abridge can be justified only by exceptional circumstances. Adkins v. Children’s Hospital, 261 U. S. 525.” Various matters which were relied on as justifying the attempted restraint or abridgement were considered and pronounced inadequate. Among them was the assumption in the Act that a business like that in question — preparing food for sale and human consumption — is so far affected with a public interest that the State may compel its continuance, and, if the owner and employees cannot agree, may fix the terms through a public" }, { "docid": "16623769", "title": "", "text": "from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law. 83 U.S. (16 Wall.), at 116, 122, 21 L.Ed. 394 (Bradley, L, dissenting); see Tr. 11/14/02 at 28:11-23 (Ms. Rose) (quoting Justice Bradley’s dissenting opinion, 83 U.S. (16 Wall.) at 120). . 2 Thomas M. Cooley, A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States of the American Union 824 (8th ed.1927): \"Liberty” as used in [the Due Process] clause denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to mariy, to establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. [Footnote omitted.] . In Hayman, the Court stated that the only protection claimed here is that of appellant's privilege to practice his calling. However extensive that protection may be in other situations, it cannot, we think, be said that all licensed physicians have a constitutional right to practice their profession in a hospital maintained by a state or a political subdivision, the use of which is reserved for purposes of medical instruction. It is not incumbent on the state to maintain a hospital for the private practice of medicine. Hayman v. City of Galveston, 273 U.S. 414, 416-417, 47 S.Ct. 363, 71 L.Ed. 714 (1927). . Justice Sutherland's opinion in Adkins v. Children’s Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 (1923), cited by plaintiffs, extolls the virtue of freedom of contract, but does so in the context of state legislation prescribing minimum wages for women and children in private employment, without reference to the pursuit of a particular line of employment. See id. at 545-546, 43 S.Ct. 394 (\"the right to contract about one’s affairs is a part of the liberty" }, { "docid": "22799815", "title": "", "text": "of the due process clause of the Fifth Amendment. That the right to contract about one’s affairs is a part of the liberty of the individual protected by this clause, is settled by the decisions of this Court and is no longer open to question. Allgeyer v. Louisiana, 165 U. S. 578, 591; New York Life Insurance Co. v. Dodge, 246 U. S. 357, 373-374; Coppage v. Kansas, 236 U. S. 1, 10, 14; Adair v. United States, 208 U. S. 161; Lochner v. New York, 198 U. S. 45; Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746; Muller v. Oregon, 208 U. S. 412, 421. Within this liberty are contracts of employment of labor. In making such contracts, generally speaking, the parties have an equal right to obtain from each other the best terms they can as the result of private bargaining. In Adair v. United States, supra, Mr. Justice Harlan (pp. 174,175), speaking for the Court, said: “ The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell. ... In all such particulars the employer and employe have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land.” In Coppage v. Kansas, supra (p. 14), this Court, speaking through Mr. Justice Pitney, said: “ Included in the right of personal liberty and the right of private property — partaking of the nature of each — is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense. The right is as essential to the" }, { "docid": "22091867", "title": "", "text": "them to quit. These qualifications do not change the essence of the act. It curtails the right of the employer on the one hand, and of the employee on the other, to contract about his affairs. This is part of the liberty of the individual protected by the guaranty of the due process clause of the Fourteenth Amendment. Meyer v. Nebraska, ante, 390. While there is no such thing as absolute freedom of contract and it is subject to a variety of restraints, they must not be arbitrary or unreasonable. Freedom is the general rule, and restraint the exception. The legislative authority to abridge can be justified only by exceptional circumstances. Adkins v. Children’s Hospital, 261 U. S. 525. It is argued for the State that such exceptional circumstances exist in the present case and that the act is neither arbitrary nor unreasonable. Counsel maintain: First. The act declares that the preparation of human food is affected by a public interest and the power of the legislature so to declare and then to regulate the business is established in Munn v. Illinois, 94 U. S. 113; Budd v. New York, 143 U. S. 517; Brass v. Stoeser, 153 U. S. 391; Noble State Bank v. Haskell, 219 U. S. 104; German Alliance Insurance Co. v. Lewis, 233 U. S. 389; and Block v. Hirsh, 256 U. S. 135. Second. The power to regulate a business affected with a public interest extends to fixing wages and terms of employment to secure continuity of operation. Wilson v. New, 243 U. S. 332, 352, 353. Businesses said to be clothed with a public interest justifying some public regulation may be divided into three classes: (1) Those which are carried on under the authority of a public grant of privileges which either expressly or impliedly imposes the affirmative duty of rendering a public service demanded by any member of the public. Such are the railroads, other common carriers and public utilities. (2) Certain occupations, regarded as exceptional, the public interest attaching to which, recognized ' from earliest times, has survived the period of arbitrary" }, { "docid": "21882270", "title": "", "text": "the right of the employer on the one hand, and of the employee on the other, to contract about his affairs. This is part of the liberty of the individual protected by the guarantee of the due process clause of the Fourteenth Amendment. Meyer v. Nebraska, ante, 390. While there is no such thing as absolute freedom of contract and it is subject to a variety of restraints, they must not be arbitrary or unreasonable. Freedom is the general-rule, and restraint the exception. The legislative authority to abridge can be justified only by exceptional circumstances. Adkins v. Children’s Hospital, 261 U. S. 525.” Various matters which were relied on as justifying the attempted restraint or abridgement were considered and pronounced inadequate. Among them was the assumption in the Act that a business like that in question — preparing food for sale and human consumption — is so far affected with a public interest that the State may compel its continuance, and, if the owner and employees cannot agree, may fix the terms through a public agency to the end that there shall be continuity of operation and production. This assumption was held to be without any sound, basis and its indulgence by the state legislature was declared not controlling. The court recognized that, in a sense, all business is of some concern to the public and subject to some measure of regulation, but made it plain that the extent to which regulation reasonably may go varies greatly with different classes of business and is not a matter of legislative discretion solely, but is a judicial question to be determined with due regard to the rights of the owner and employees. Care was taken to point out that operating a railroad, keeping an inn, conducting an elevator and following a common calling are not all in the same class/ and particularly to point out the distinctions between a quasi-public business conducted under a public grant imposing a correlative duty to operate, a business originally private which comes to.be affected with a public interest through a change in pais, and a business" }, { "docid": "14210947", "title": "", "text": "scenario about which the Supreme Court has signaled concern; and given that the plaintiffs’ own free exercise rights are at most modestly burdened by the contraceptive mandate, we tread on dangerous territory by exempting the plaintiffs from the statutory mandate. I mentioned at the outset that the court’s decision struck me as reminiscent of the Lochner era; let me explain why I think this is so. Lochner and its progeny struck down a host of wage, hour, and other workplace regulations on the theory that they impermissibility intruded on the rights of contract, property, and to engage in a lawful, private business as protected by the due process clauses of the Fifth and Fourteenth Amendments. See, e.g., Lochner v. New York, 198 U.S. 45, 57, 25 S.Ct. 539, 543, 49 L.Ed. 937 (1905) (state statute specifying that bakery employees could work no more than 10 hours per day or 60 hours per week impermissibly intruded on employer’s and employee’s freedom of contract: “There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker.”); Coppage v. Kansas, 236 U.S. 1, 11-14, 35 S.Ct. 240, 242-43, 59 L.Ed. 441 (1915) (state statute proscribing “yellow dog” contracts that forbade employees from joining a union interfered with rights of contract and private property); Adkins v. Children’s Hosp. of D.C., 261 U.S. 525, 557-59, 43 S.Ct. 394, 401-02, 67 L.Ed. 785 (1923) (federal statute establishing minimum wage standards for women and children working in District of Columbia interfered with freedom of contract by artificially restricting employer’s side of wage negotiation); New State Ice Co. v. Liebmann, 285 U.S. 262, 278, 52 S.Ct. 371, 374, 76 L.Ed. 747 (1932) (state statute requiring a license to engage in manufacture, distribution, or sale of ice interfered with common right to engage in lawful private business). One flaw of the Lochner jurisprudence is that while the Court purported to protect the constitutional rights of workers as well as employers, it blinded itself to the reality that employees frequently did not" }, { "docid": "23323459", "title": "", "text": "of ^ employment, generally speaking, the parties have equal right to obuain from each other the best terms they can by private bargaining. Legislative abridgement of that freedom can only be justified by the existence of exceptional circumstances. Freedom of contract is the general rule and restraint the exception. This court has found not repugnant to the due process clause statutes fixing rates and charges to be exacted by businesses impressed with a public interest, relating to contracts for the performance of public work, prescribing the character, methods, and time of payment of wages, fixing hours of labor.” In Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 525, 534, 43 S.Ct. 630, 632, 67 L.Ed. 1103, 27 A.L.R. 1280, the Supreme Court said of the act there challenged: “It curtails the right of the employer on the one hand, and of the cmployee on the other, to contract about his affairs. This is part of the liberty of the individual protected by the guaranty of the due process clause of the Fourteenth Amendment.” In Adair v. United States, 208 U.S. 161, 174, 175, 28 S.Ct. 277, 280, 52 L.Ed. 436, 13 Ann.Cas. 764, Mr. Justice Harlan, speaking for the court, said: “The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it. * * * In all such particulars the employer and the employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land.” In Coppage v. State of Kansas, 236 U.S. 1, 14, 35 S.Ct. 240, 243, 59 L.Ed. 441, L.R.A.1915C, 960, Mr. Justice Pitney said: \"Included in the right of personal liberty and the right of private property-partaking of the nature of each-is the right to make contracts for the acquisition of property. Chief among such contracts is" }, { "docid": "14210949", "title": "", "text": "possess bargaining power enabling them to pursue and protect their own liberty interests, so that by invalidating regulations meant to protect workers, the • Court was in fact depriving them of their contractual and other rights; substantive due process was being wielded as a club to defeat important workplace protections. When the Court signaled an end to the Lochner era with its decision in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937), to uphold a state statute establishing a minimum wage for women and minors — and thus to overrule its decision in Adkins — it stressed that the concept of liberty enshrined in the due process clause also includes the right of government-to enact legislation aimed at promoting the health and welfare of the public, including protection for the rights of employees: The principle which must control our decision is not in doubt. The constitutional provision invoked is the due process clause of the Fourteen Amendment governing the states, as the due process clause invoked in the Adkins Case governed Congress. In each case the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has a history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interest of the community is due process. Id. at 391, 57 S.Ct. at 581-82. In concluding that the minimum-wage law fell within this broad police power, and did not imper-missibly intrude upon the rights of employers, the Court" }, { "docid": "22799814", "title": "", "text": "must yield to that which is. To hold it invalid (if it be invalid) is a plain exercise of the judicial power — that power vested in courts to enable them to administer justice according to law. From the authority to ascertain and determine the law in a given case, there necessarily results, in case of conflict, the duty to declare and enforce the rule of the supreme law and reject that of an inferior act of legislation which, transcending the Constitution, is of no effect and binding on no one. This is not the exercise of a substantive power to review and nullify acts of-Congress, for no such substantive power exists. It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination, of which must be brought the test and measure of the law. The statute now under consideration is ¿ttacked upon the ground that it authorizes an unconstitutional inter-' ference with the freedom of contract included within the guaranties of the due process clause of the Fifth Amendment. That the right to contract about one’s affairs is a part of the liberty of the individual protected by this clause, is settled by the decisions of this Court and is no longer open to question. Allgeyer v. Louisiana, 165 U. S. 578, 591; New York Life Insurance Co. v. Dodge, 246 U. S. 357, 373-374; Coppage v. Kansas, 236 U. S. 1, 10, 14; Adair v. United States, 208 U. S. 161; Lochner v. New York, 198 U. S. 45; Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746; Muller v. Oregon, 208 U. S. 412, 421. Within this liberty are contracts of employment of labor. In making such contracts, generally speaking, the parties have an equal right to obtain from each other the best terms they can as the result of private bargaining. In Adair v. United States, supra, Mr. Justice Harlan (pp. 174,175), speaking for the Court, said: “ The right of a person to sell his labor upon such terms" }, { "docid": "22091866", "title": "", "text": "Mr. Chief Justice Taft, after stating the case as above, delivered the opinion of the Court. The necessary postulate of the Industrial Court Act is that the State, representing the people, is so much interested in their peace, health and comfort that it may compel those engaged in the manufacture of food, and clothing, and the production of fuel, whether owners or workers, to continue in their business and employment on terms fixed by an agency of the State if they can not agree. Under the construction adopted by the State Supreme Court the act gives the Industrial Court authority to permit the owner or employer to go out of the business, if he shows that he can only continue on the terms fixed at such heavy loss that collapse will follow; but this privilege under the circumstances is generally illusory. Block v. Hirsh, 256 U. S. 135, 157. A laborer dissatisfied with his wages is permitted to quit, but he may not agree with his fellows to quit or combine with others to induce them to quit. These qualifications do not change the essence of the act. It curtails the right of the employer on the one hand, and of the employee on the other, to contract about his affairs. This is part of the liberty of the individual protected by the guaranty of the due process clause of the Fourteenth Amendment. Meyer v. Nebraska, ante, 390. While there is no such thing as absolute freedom of contract and it is subject to a variety of restraints, they must not be arbitrary or unreasonable. Freedom is the general rule, and restraint the exception. The legislative authority to abridge can be justified only by exceptional circumstances. Adkins v. Children’s Hospital, 261 U. S. 525. It is argued for the State that such exceptional circumstances exist in the present case and that the act is neither arbitrary nor unreasonable. Counsel maintain: First. The act declares that the preparation of human food is affected by a public interest and the power of the legislature so to declare and then to regulate the" }, { "docid": "23323462", "title": "", "text": "43 S.Ct. 394, 67 L.Ed. 785, 24 A.L.R. 1238; Meyer v. state of Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042, 29 A.L.R. 1446. If the act challenged m this suit had provided that it should be an unfair labor practice for an employer to bargain collectively with the representative of a majority of his employees, we think no court would sustain the act, for the right of employees to organize and bargain collectively is undoubtedly protected by the due process clause of the Fifth Amendment to the Constitution of the United States. The question, then, is whether the right of an employer to bargain individually with his employees (regardless of whether a majority of them have selected representatives to bargain for all of his employees or not) and the right of his employees to bargain individually with him are not also fully protected by this same due process clause, The court below was of the opinion that such rights to contract were protected by the Constitution of the United States, and certainly no one would contend, in the present state of the law, that that conclusion was without substantial support. If the conclusion reached by the trial court in this regard was correct, then he would seem to be justified in concluding that the act was wholly void upon the ground that the collective bargaining feature of the act constituted its “bone and sinew,” without which the act could not stand. Carter v. Carter Coal Co., 56 S. Ct. 855, 80 L. Ed. 1160, opinion filed May 18, 1936. That the injury to the appellees would be certain, substantial, and immediate if a temporary injunction were not granted is apparent from the findings which the trial court has made. That the injury to the appellants from the granting of the temporary injunction will be inconsequential is clear. The decree which the trial court has entered amounts to nothing more than granting a stay of proceedings before the board until this suit is finally determined. If the facts found by the trial court are correct, the board" }, { "docid": "22955971", "title": "", "text": "supra, p. 537, it was said: “ It has never been supposed, since the adoption of the Constitution, that the business of the-butcher, or the baker, the tailor,.the wood chopper, the mining operator or the miner was clothed with such a public interest that the price of his product or his wages could be fixed by State regulation. . . .. one does not devote one’s property or business to the public use or clothe it with a public interest merely because one makes commodities for, and sells to, the public in the common callings of which those above mentioned are instances.” In Adkins v. Children’s Hospital, 261 U. S. 525, this Court had under consideration an act of Congress fixing minimum wages for women and children in the District of Columbia. The legislation, so far as it affected women, was held invalid as contravening the due process of law clause of the Fifth Amendment, because it was an arbitrary interference with the right to contract in respect of terms of private employment. It was said (p. 546) that while there was no such thing as absolute freedom of contract,', nevertheless, freedom of contract was the general rule and restraint the exception; and that “the exercise of legislative authority to abridge if can be justified only by the existence of exceptional circumstances.” The business of securing employment for those seeking work and employees for those seeking workers is essentially that of a broker, that is, of an intermediary. While we do not undertake to say that there may not be a deeper concern , on the part of the public in the business of an employment agency, that, business does not differ in sub stantial character from the business of a real estate broker, ship broker, merchandise broker or ticket broker. In the Tyson case, supra, we declared unconstitutional án act of the New York legislature which sought to fix the price at'which theatre tickets should be sold by a ticket broker, and it is not easy to see how, without disregarding that decision, price-fixing legislation in respect of other" }, { "docid": "8133010", "title": "", "text": "is not only free from compulsion but is expressly informed that he is at liberty to reject any proposal of A, that which A does in pursuance of the compulsion cannot properly be called bargaining. A has lost his freedom of contract. These are property rights, and the plain tiff is deprived thereof without process of law, in violation of the Fifth Amendment to the Constitution. Lochner v. New York, 198 U.S. 45, 64, 25 S.Ct. 539, 49 L.Ed. 937, 3 Ann.Cas. 1133; Adair v. U. S., 20S U.S. 161, 175, 28 S.Ct. 277, 52 L.Ed. 436, 13 Ann.Cas. 764; Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441, L.R.A. 1915C, 960; Adkins v. Children’s Hospital, 261 U.S. 525, 545, 43 S.Ct. 394, 67 L.Ed. 785, 24 A.L.R. 1238; Wolff Co. v. Industrial Court, 262 U.S. 522, 534, 43 S.Ct. 630, 67 L.Ed. 1103, 27 A.L.R. 1280. The inference to be drawn from Pennsylvania R. Co. v. U. S. R. Labor Board, 261 U.S. 72, 43 S.Ct. 278, 67 L.Ed. 536, and Pennsylvania R., etc., Federation v. Pennsylvania R. Co., 267 U.S. 203, 45 S.Ct. 307, 69 L.Ed. 574, is that a statute such as that under consideration in this case would be unconstitutional. In the earlier of these two cases, the court, 261 U.S. 72, at page 84, 43 S.Ct. 278, 283, 67 L.Ed. 536, said: “The jurisdiction of the Board to direct the parties to do what it deems they should do is not to be limited by their constitutional or legal right to refuse to do it. Under the act there is no constraint upon them to do what the Board decides they should do except the moral constraint, already mentioned, of publication of its decision. “It is not for this or any other court to pass upon the correctness of the conclusion of the Labor Board if it keeps within the jurisdiction thus assigned to it by the statute. The statute does not require the railway company to recognize or to deal with or confer with labor unions. It does not require employees" }, { "docid": "16623770", "title": "", "text": "the only protection claimed here is that of appellant's privilege to practice his calling. However extensive that protection may be in other situations, it cannot, we think, be said that all licensed physicians have a constitutional right to practice their profession in a hospital maintained by a state or a political subdivision, the use of which is reserved for purposes of medical instruction. It is not incumbent on the state to maintain a hospital for the private practice of medicine. Hayman v. City of Galveston, 273 U.S. 414, 416-417, 47 S.Ct. 363, 71 L.Ed. 714 (1927). . Justice Sutherland's opinion in Adkins v. Children’s Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 (1923), cited by plaintiffs, extolls the virtue of freedom of contract, but does so in the context of state legislation prescribing minimum wages for women and children in private employment, without reference to the pursuit of a particular line of employment. See id. at 545-546, 43 S.Ct. 394 (\"the right to contract about one’s affairs is a part of the liberty of the individual protected by this [Due Process] clause,” and although \"[t]here is, of course, no such thing as absolute freedom of contract[,] ... freedom of contract is, nevertheless, the general rule, and restraint the exception, and the exercise of legislative authority to abridge.it can be justified only by the existence of exceptional circumstances”), overruled by West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937). The Court has long since abandoned Adkins’ expansive view of freedom of contract. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 860, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). . In arguing the denial of procedural due process, Dr. MacArthur’s counsel retreated somewhat from her substantive due process theory: THE COURT: Okay. Well your idea is that in rural areas a doctor with a. medical degree and a medical license has unrestricted power to practice in a local hospital? MS. ROSE: No, Your Honor, it is subject to what is called peer review. It is subject to notice and due" }, { "docid": "23323458", "title": "", "text": "curtailment of the right of employees to bargain individually with their employer, does not render the act null and void be cause of its apparent conflict with the due process clause of the Fifth Amendment of the Constitution of the United States, That this clause protects freedom of contract has long been settled. The last expression of the Supreme Court on that subject is contained m the case of Morehead v. People of New York ex rel. Tipaldo, 56 S. Ct. 918, 923, 80 L.Ed. 1347, opinion filed June 1, 1936. The court m that case held myalid a statute of New York providing minimum wages for women. The court said: This courts opinion shows [Adkins v. Children's Hospital] 261 U.S. 525, at pages 545, 546, 43 S.Ct. 394, 67 L.Ed. 785, 24 A.L.R. 1238: The right to make contracts about ones affairs is a part of tne liberty protected by the due process clause. Within this liberty are provisions of contracts between employer and cmployee fixing the wages to be paid. In makmg contracts of ^ employment, generally speaking, the parties have equal right to obuain from each other the best terms they can by private bargaining. Legislative abridgement of that freedom can only be justified by the existence of exceptional circumstances. Freedom of contract is the general rule and restraint the exception. This court has found not repugnant to the due process clause statutes fixing rates and charges to be exacted by businesses impressed with a public interest, relating to contracts for the performance of public work, prescribing the character, methods, and time of payment of wages, fixing hours of labor.” In Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 525, 534, 43 S.Ct. 630, 632, 67 L.Ed. 1103, 27 A.L.R. 1280, the Supreme Court said of the act there challenged: “It curtails the right of the employer on the one hand, and of the cmployee on the other, to contract about his affairs. This is part of the liberty of the individual protected by the guaranty of the due process clause of the Fourteenth" }, { "docid": "23323461", "title": "", "text": "that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense. The right is as essential to the laborer as to the capitalist, to the poor as to the rich; for the vast majority of persons have no other honest way to begin to acquire property, save by working for money” See, also, Butchers Union Co. v. Crescent City Co., 111 U.S. 746, 4 S.Ct. 652, 28 L.Ed. 585; Allgeyer v. Louisiana, 165 U.S. 578, 591, 17 S.Ct. 427, 41 L.Ed. 832; Lochner v. New York, 198 U.S. 45, 53, 56, 25 S.Ct. 539, 49 L.Ed. 937, 3 Ann.Cas. 1133; Muller v. Oregon, 208 U.S. 412, 421, 28 S.Ct. 324, 52 L.Ed. 551, 13 Ann.Cas. 957; New York Life Ins. Co. v. Dodge, 246 U.S. 357, 373, 374, 38 S.Ct. 337, 62 L.Ed. 772, Ann.Cas.1918E, 593; Adkins v. Children’s Hospital, supra, 261 U.S. 525, 545, 43 S.Ct. 394, 67 L.Ed. 785, 24 A.L.R. 1238; Meyer v. state of Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042, 29 A.L.R. 1446. If the act challenged m this suit had provided that it should be an unfair labor practice for an employer to bargain collectively with the representative of a majority of his employees, we think no court would sustain the act, for the right of employees to organize and bargain collectively is undoubtedly protected by the due process clause of the Fifth Amendment to the Constitution of the United States. The question, then, is whether the right of an employer to bargain individually with his employees (regardless of whether a majority of them have selected representatives to bargain for all of his employees or not) and the right of his employees to bargain individually with him are not also fully protected by this same due process clause, The court below was of the opinion that such rights to contract were protected by the Constitution of the United States, and" }, { "docid": "14210948", "title": "", "text": "the right of free contract, by determining the hours of labor, in the occupation of a baker.”); Coppage v. Kansas, 236 U.S. 1, 11-14, 35 S.Ct. 240, 242-43, 59 L.Ed. 441 (1915) (state statute proscribing “yellow dog” contracts that forbade employees from joining a union interfered with rights of contract and private property); Adkins v. Children’s Hosp. of D.C., 261 U.S. 525, 557-59, 43 S.Ct. 394, 401-02, 67 L.Ed. 785 (1923) (federal statute establishing minimum wage standards for women and children working in District of Columbia interfered with freedom of contract by artificially restricting employer’s side of wage negotiation); New State Ice Co. v. Liebmann, 285 U.S. 262, 278, 52 S.Ct. 371, 374, 76 L.Ed. 747 (1932) (state statute requiring a license to engage in manufacture, distribution, or sale of ice interfered with common right to engage in lawful private business). One flaw of the Lochner jurisprudence is that while the Court purported to protect the constitutional rights of workers as well as employers, it blinded itself to the reality that employees frequently did not possess bargaining power enabling them to pursue and protect their own liberty interests, so that by invalidating regulations meant to protect workers, the • Court was in fact depriving them of their contractual and other rights; substantive due process was being wielded as a club to defeat important workplace protections. When the Court signaled an end to the Lochner era with its decision in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937), to uphold a state statute establishing a minimum wage for women and minors — and thus to overrule its decision in Adkins — it stressed that the concept of liberty enshrined in the due process clause also includes the right of government-to enact legislation aimed at promoting the health and welfare of the public, including protection for the rights of employees: The principle which must control our decision is not in doubt. The constitutional provision invoked is the due process clause of the Fourteen Amendment governing the states, as the due process clause invoked in" }, { "docid": "8133009", "title": "", "text": "farther, since the employer must bargain in good faith with an intent to enter into some sort of a closed shop agreement, and, since, under the act, the representatives of the employees are at liberty arbitrarily to reject any suggestion of the employer, regardless of how reasonable it may be, the employer must eventually enter into a closed shop agreement. Accordingly, the plaintiff enters into a closed shop agreement with Bendix Employees’ Association and, in pursuance thereof, informs the 1,700 members of Local No. 9 and the 40 independents that they must either join Bendix Employees’ Association or be discharged, and they either do join or are discharged. The question is: Of what constitutional rights, if any, has the plaintiff been deprived? Under the facts assumed in this paragraph, it has been deprived of the right to bargain with the 1,700 members of Local No. 9 and the 40 independents. It has also been deprived of the right to bargain at all. If A is compelled to negotiate with B and must contract, but B is not only free from compulsion but is expressly informed that he is at liberty to reject any proposal of A, that which A does in pursuance of the compulsion cannot properly be called bargaining. A has lost his freedom of contract. These are property rights, and the plain tiff is deprived thereof without process of law, in violation of the Fifth Amendment to the Constitution. Lochner v. New York, 198 U.S. 45, 64, 25 S.Ct. 539, 49 L.Ed. 937, 3 Ann.Cas. 1133; Adair v. U. S., 20S U.S. 161, 175, 28 S.Ct. 277, 52 L.Ed. 436, 13 Ann.Cas. 764; Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441, L.R.A. 1915C, 960; Adkins v. Children’s Hospital, 261 U.S. 525, 545, 43 S.Ct. 394, 67 L.Ed. 785, 24 A.L.R. 1238; Wolff Co. v. Industrial Court, 262 U.S. 522, 534, 43 S.Ct. 630, 67 L.Ed. 1103, 27 A.L.R. 1280. The inference to be drawn from Pennsylvania R. Co. v. U. S. R. Labor Board, 261 U.S. 72, 43 S.Ct. 278, 67 L.Ed. 536, and" }, { "docid": "23323457", "title": "", "text": "court granted the application of the board to enforce a cease and desist order. In the case of National Labor Relations Board v. Friedman-Harry Marks Clothing Co., Inc., 85 F.(2d) 1, opinion filed July 13, 1936, the same court denied the application to enforce a cease and desist order of the board against a manufacturer of men’s clothing at Richmond, Va., on the ground that the relations of employer and employee were incidents of production and that the employer was not engaged in interstate commerce and that its labor practices did not directly affect interstate commerce. Whether the act, in view of its language, may be limited by construction so as to apply only to labor relations in or directly affecting interstate commerce, we think is at least uncertain. Another grave question presented by this suit is whethér the curtailment of the right of an employer, who is subject to the act, to bargain individually with his employees or such of his employees as are willing to so bargain with him, as well as the curtailment of the right of employees to bargain individually with their employer, does not render the act null and void be cause of its apparent conflict with the due process clause of the Fifth Amendment of the Constitution of the United States, That this clause protects freedom of contract has long been settled. The last expression of the Supreme Court on that subject is contained m the case of Morehead v. People of New York ex rel. Tipaldo, 56 S. Ct. 918, 923, 80 L.Ed. 1347, opinion filed June 1, 1936. The court m that case held myalid a statute of New York providing minimum wages for women. The court said: This courts opinion shows [Adkins v. Children's Hospital] 261 U.S. 525, at pages 545, 546, 43 S.Ct. 394, 67 L.Ed. 785, 24 A.L.R. 1238: The right to make contracts about ones affairs is a part of tne liberty protected by the due process clause. Within this liberty are provisions of contracts between employer and cmployee fixing the wages to be paid. In makmg contracts" } ]

[ { "docid": "22586204", "title": "", "text": "Amendment analysis embraces two questions. First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that “he [sought] to preserve [something] as private.” Smith v. Maryland, 442 U. S. 785, 740 (1979) (internal quotation marks omitted). Here, petitioner sought to preserve privacy by using an opaque bag and placing that bag directly above his seat. Second, we inquire whether the individual’s expectation of privacy is “one that society is prepared to recognize as reasonable.” Ibid, (internal quotation marks omitted). When a bus passenger places a bag in an overhead bin, he expects that other passengers or bus employees may move it for one reason or another. Thus, a bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here. We therefore hold that the agent’s physical manipulation of petitioner’s bag violated the Fourth Amendment. The judgment of the Court of Appeals is Reversed. The Government has not argued here that petitioner’s consent to Agent Cantu’s opening the bag is a basis for admitting the evidence. The parties properly agree that the subjective intent of the law enforcement officer is irrelevant in determining whether that officer’s actions violate the Fourth Amendment. Brief for Petitioner 14; Brief for United States 33-34; see Whren v. United States, 517 U. S. 806, 813 (1996) (stating that “we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers”); California v. Ciraolo, 476 U. S. 207, 212 (1986) (rejecting respondent’s challenge to “the authority of government to observe his activity from any vantage point or place if the viewing is motivated by a law enforcement purpose, and not the result of a casual, accidental observation”). This principle applies to the agent’s acts in this case as well; the issue is not his state of mind, but the objective effect of his actions. Justice Breyer, with whom Justice" } ]

[ { "docid": "20501424", "title": "", "text": "v. Unit ed States, 394 U.S. 165, 176, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). “[W]e [do not] believe that Katz, by holding that the Fourth Amendment protects persons and their private conversations, was intended to withdraw any of the protection which the Amendment extends to the home .... ” Id., at 180, 89 S.Ct. 961. 132 S.Ct. at 950-51 (some alteration in original)(footnotes omitted). In her concurrence, Justice Sotomayor agreed that “the trespassory test applied in the majority’s opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case.” 132 S.Ct. at 955 (Sotomayor, J., concurring). She continued: Of course, the Fourth Amendment is not concerned only with trespassory intrusions on property. See, e.g., Kyllo v. United States, 533 U.S. [at] 31-33, 121 S.Ct. 2038 .... Rather, even in the absence of a trespass, “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Id., at 33, 121 S.Ct. 2038; see also Smith v. Maryland, 442 U.S. 735, 740-741, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Katz v. United States, 389 U.S. [at] 361, 88 S.Ct. 507 ... (Harlan, J., concurring). 132 S.Ct. at 954-55 (Sotomayor, J., concurring). Justice Sotomayor’s concurrence focused on the reality, in her view, that, physical intrusion is now unnecessary to many forms of surveillance.... In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance. But “[situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” 132 S.Ct. at 955 (Sotomayor, J., eoncur-ring)(alteration in original)(quoting the majority opinion, 132 S.Ct. at 953). The Honorable Samuel A. Alito, Associate Justice, joined by Justices Ginsburg, Breyer, and Kagan, concurred in the judgment only, reasoning that, although he agreed with the result, given the use of twenty-first century technology, he would have analyzed whether the government’s long-term monitoring of the defendant violated the Katz v. United" }, { "docid": "20585533", "title": "", "text": "relies upon technology not in general use to discover the movements of an individual over an extended period of time.” Per haps. But that question is not before us. The question we must answer is not whether, in the abstract, an individual has a reasonable expectation of privacy in' his location and movements over time. Rather, the question before us is whether an individual has a reasonable expectation of privacy in a third party’s records that permit the government to deduce this information. Karo, Kyllo, and Jones, all of which involve direct government surveillance, tell us nothing about the answer to that question. Instead, the cases that establish the third-party doctrine provide the answer. Under the third-party doctrine, an individual can claim “no legitimate expectation of privacy” in information that he has voluntarily turned over to a third party. Smith, 442 U.S. at 743-44, 99 S.Ct. 2577. The Supreme Court has reasoned that, by “revealing his affairs to another,” an individual “takes the risk ... that the information will be conveyed by that person to the Government.” Miller, 425 U.S. at 443, 96 S.Ct. 1619. The Fourth Amendment does not protect information voluntarily disclosed to a third party because even a subjective expectation of privacy in such information is “not one that society is prepared to recognize as ‘reasonable.’ ” Smith, 442 U.S. at 743, 99 S.Ct. 2577 (internal quotation marks and citation omitted). The government therefore does not engage in a Fourth Amendment “search” when it acquires such information from a third party. Applying the third-party doctrine to the facts of this case, I would hold that Defendants did not have a reasonable expectation of privacy in the CSLI recorded by Sprint/Nextel. The Supreme Court’s reasoning in Smith controls. There, the defendant challenged the government’s use of a pen register — a device that could record the outgoing phone numbers dialed from his home telephone. Id. at 737, 99 S.Ct. 2577. The Court held that the defendant could “claim no legitimate expectation of privacy” in the numbers he had dialed because he had “voluntarily conveyed” those numbers to the" }, { "docid": "12633890", "title": "", "text": "activities in which we have historically maintained protected privacy interests. Neither can the protections of the Fourth Amendment. See Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 2043, 150 L.Ed.2d 94 (2001) (“To withdraw protection of this minimum expectation [of privacy] would be to permit ..-. technology to erode the privacy guaranteed by the Fourth Amendment.”). So reliance on the third-party doctrine must be limited to those cases involving alleged privacy interests that do not implicate a more specific historically recognized reasonable privacy interest. I. Before exploring why this is so, I pause to express my view that the Dissent is right to raise its concerns. In our time, unless a person is willing to live “off the grid,” it is nearly impossible to avoid disclosing the most personal of information to third-party service providers on a constant basis, just to navigate daily life. And the thought that the government should be able to access such information without the basic protection that a warrant offers is nothing less than chilling. Today’s world, with its total integration of third-party-provided technological services into everyday life, presents a steroidal version of the problems that Justices Marshall and Brennan envisioned when they dissented in United States v. Miller, 425 U.S. 435, 447, 454, 96 S.Ct. 1619, 1626, 1629, 48 L.Ed.2d 71 (1976) (Brennan, J., and Marshall, J., dissenting, respectively), and its progeny, including Smith v. Maryland, 442 U.S. 735, 748, 99 S.Ct. 2577, 2584, 61 L.Ed.2d 220 (1979) (Marshall, J., dissenting). As Justice Marshall aptly explained the problem, under the third-party doctrine, “unless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance.” Smith, 442 U.S. at 750, 99 S.Ct. 2577, 2585, 61 L.Ed.2d 220 (Marshall, J., dissenting). Perhaps it was this type of realization that caused Justice Sotomayor to write, “[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.” United States v. Jones, — U.S.-, 132 S.Ct. 945," }, { "docid": "20585432", "title": "", "text": "into account. See Kyllo, 533 U.S. at 36, 121 S.Ct. 2038 (“While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.”). In any event, the CSLI at issue here was precise enough, at minimum, to support reasonable inferences about Appellants’ locations at specific points in time. Otherwise, the information would have lacked any probative value at trial. The very reason that the government obtained and introduced the evidence was to establish Appellants’ locations during times surrounding the charged robberies. Investigators and prosecutors must have believed, after analyzing the CSLI, that it was sufficiently precise to establish Appellants’ whereabouts. The fact that inference was required to glean Appellants’ past locations from the CSLI does not ameliorate or lessen in any manner the invasion of privacy. Indeed, the Supreme Court, in Kyllo, specifically rejected “the novel proposition that inference insulates a search.... ” Id. at 36, 121 S.Ct. 2038 (citing Karo, 468 U.S. 705, 104 S.Ct. 3296). We therefore reject the government’s argument that the CSLI was not adequately precise to infringe upon Appellants’ expectations of privacy in their locations and movements. 4. We also disagree with the district court’s and the dissent’s conclusion that Appellants lacked a reasonable expectation of privacy in their CSLI because the CSLI records were kept by Sprint/Nextel in the ordinary course of business. See Graham, 846 F.Supp.2d at 403; post at 380-81. The dissent argues first that “[t]he nature of the governmental activity” at issue in this case sets it apart from Karo, Kyllo, and Jones. Post at 379-80. While Karo, Kyllo, and Jones each involved direct and contemporaneous surveillance by government agents, the locational tracking challenged here was achieved through government inspection of records held by a third party. This distinction is inconsequential. The precedents of this Court and others show that a Fourth Amendment search may certainly be achieved through an inspection of third-party records. See, e.g., Doe v. Broderick, 225 F.3d 440, 450-52 (4th Cir.2000) (holding that detective’s examination of a patient file" }, { "docid": "5184498", "title": "", "text": "of in Pasco County, Florida” (quoting Ciraolo )). Indeed, in Riley, Justice O’Connor, whose concurrence was necessary to the judgment, pointed out: Ciraolo’s expectation of privacy was unreasonable not because the airplane was operating where it had a “right to be,” but because public air travel at 1,000 feet is a sufficiently routine part of modern life that it is unreasonable for persons on the ground to expect that their curtilage will not be observed from the air at that altitude. If the public rarely, if ever, travels overhead at such altitudes, the observation cannot be said to be from a vantage point generally used by the public and Riley cannot be said to have “knowingly expose[d]” his greenhouse to public view. 488 U.S. at 453, 455, 109 S.Ct. 693; see also id. at 467, 109 S.Ct. 693 (Blackmun, J., dissenting) (explaining five justices agreed “the reasonableness of Riley’s expectation depends, in large measure, on the frequency of nonpolice helicopter flights at an altitude of 400 feet”). The Supreme Court re-affirmed this approach in Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). There a passenger on a bus traveling to Arkansas from California had placed his soft luggage in the overhead storage area above his seat. During a routine stop at an off-border immigration checkpoint in Sierra Blanca, Texas, a Border Patrol agent squeezed the luggage in order to determine whether it contained drugs and thus detected a brick of what turned out to be methamphetamine. The defendant argued the agent had defeated his reasonable expectation of privacy, and the Government argued his expectation his bag would not be squeezed was unreasonable because he had exposed it to the public. The Court responded: [ A] bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here. We therefore hold that the agent’s physical manipulation of petitioner’s bag violated the Fourth Amendment. Id. at" }, { "docid": "5184499", "title": "", "text": "v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). There a passenger on a bus traveling to Arkansas from California had placed his soft luggage in the overhead storage area above his seat. During a routine stop at an off-border immigration checkpoint in Sierra Blanca, Texas, a Border Patrol agent squeezed the luggage in order to determine whether it contained drugs and thus detected a brick of what turned out to be methamphetamine. The defendant argued the agent had defeated his reasonable expectation of privacy, and the Government argued his expectation his bag would not be squeezed was unreasonable because he had exposed it to the public. The Court responded: [ A] bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here. We therefore hold that the agent’s physical manipulation of petitioner’s bag violated the Fourth Amendment. Id. at 338-89, 120 S.Ct. 1462. The Court focused not upon what other passengers could have done or what a bus company employee might have done, but rather upon what a reasonable bus passenger expects others he may encounter, i.e., fellow passengers or bus company employees, might actually do. A similar focus can be seen in Kyllo, in which the Court held use of a thermal imaging device defeats the subject’s reasonable expectation of privacy, “at least where ... the technology in question is not in general public use.” 533 U.S. at 34, 121 S.Ct. 2038. The Government cites as authority to the contrary our statement in United States v. Gbemisola, 225 F.3d 753, 759 (2000), that “[t]he decisive issue ... is not what the officers saw but what they could have seen.” When read in context, however, this snippet too supports the view that whether something is “expose[d] to the public,” Katz, 389 U.S. at 351, 88 S.Ct. 507, depends not upon the theoretical possibility, but upon the actual likelihood, of discovery by a stranger: The" }, { "docid": "15455896", "title": "", "text": "records in this way, the Act violates the Fourth Amendment. According to Defendants, the statute permits the Government to unconstitutionally collect their private information. This argument ignores the nature of the governmental activity here, which critically distinguishes this case from those in which the government did unconstitutionally collect private information. In United States v. Karo, 468 U.S. 705, 714-15, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), for instance, the Drug Enforcement Agency placed a beeper within a can of ether and received tracking information from the beeper while the can was inside a private residence. Similarly, in Kyllo, 533 U.S. at 34-35, 121 S.Ct. 2038, the Department of the Interior used a thermal imager to gather “information regarding the interior of the home.” And in United States v. Jones, — U.S. -, 132. S.Ct. 945, 948-49, 954, 181 L.Ed.2d 911 (2012), the FBI and local law enforcement secretly installed a GPS tracking device on a suspect’s vehicle and monitored the vehicle’s movements for four weeks. On the basis of these cases, Defendants contend that the government always invades an individual’s reasonable expectation of privacy when it employs technological devices to track an individual’s moves. Perhaps so. But that question is not before us. No government tracking is at issue here. Rather, the question before us is whether the government invades an individual’s reasonable expectation of privacy when it obtains, from a third party, the third party’s records, which permit the government to deduce location information. Karo, Kyllo, and Jones, all of which involve direct government surveillance activity, tell us nothing about the answer to that question. Instead, the cases that establish the third-party doctrine provide the answer. Under the third-party doctrine, an individual can claim “no legitimate expectation of privacy” in information that he has voluntarily turned over to a third party. Smith, 442 U.S. at 743-44, 99 S.Ct. 2577. The Supreme Court has reasoned that, by “revealing his affairs to another,” an individual “takes the risk ... that the information will be conveyed by that person to the Government.” Miller, 425 U.S. at 443, 96 S.Ct. 1619. The Fourth" }, { "docid": "11843397", "title": "", "text": "reasonable expectation of privacy in his or her fingerprints, which is to say that the police actions of taking a fingerprint would not be a search within the meaning of the Fourth Amendment, in Hayes, the Court signaled that a person has a protected interest, albeit a diminished one, in the taking of his or her fingerprints.” Thomas K. Clancy, What Is a “Search” Within the Meaning of the Fourth Amendment?, 70 Alb. L.Rev. 1, 8 n. 39 (2006). Hayes reflects and is consistent with the modern trend in Supreme Court cases, which increasingly has been to recognize intrusive and invasive police practices as searches— and then to determine whether they are reasonable. See Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (\"We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search — at least where (as here) the technology in question is not in general public use.”) (internal quotation marks and citation omitted); Bond v. United States, 529 U.S. 334, 337, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) (merely feeling or squeezing a passenger's bag is a search: \"Physically invasive inspection is simply more intrusive than purely visual inspection.”); Skinner, 489 U.S. at 616-17, 109 S.Ct. 1402 (breath, blood, and urine collection and testing procedures are searches). The Supreme Court ordinarily no longer engages in the kinds of contortions it once arguably employed to find certain police procedures not to be searches. See Akhil Reed Amar, Fourth Amendment First Pñnciples, 107 Harv. L.Rev. 757, 769, 783-85 (1994) (\"To avoid some of the absurdities created by the so-called warrant and probable cause requirements, the Justices have watered down the plain meaning of 'search' and 'seizure.' ”). . The Supreme Court has often looked to state laws, the Model Code of Pre-Arraignment Procedure, and Professor LaFave's treatise in considering the reasonableness of police practices under the Fourth Amendment. See, e.g., Brendlin v. California, - U.S. -, 127 S.Ct. 2400, 2407-08, 168" }, { "docid": "2982367", "title": "", "text": "3561881; Reply Brief for Petitioner, United States v. Jones, 132 S.Ct. 945 (2012) (No. 10-1259), 2011 WL 5094951. Five justices found that argument unconvincing. . Lower courts, too, have recognized that the Supreme Court's Fourth Amendment decisions cannot be read too broadly. See, e.g., United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir.1987) (\"It does not follow that [California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), which held that police did not violate a reasonable expectation of privacy when they engaged in a warrantless aerial observation of marijuana plants growing on curtilage of a home using only the naked eye from a height of 1,000 feet,] authorizes any type of surveillance whatever just because one type of minimally-intrusive aerial observation is possible.”). . True, the Court in Knotts explicitly “reserved the question whether 'different constitutional principles may be applicable’ to ‘dragnet-type law enforcement practices’ of the type that GPS tracking made possible” in Jones. Jones, 132 S.Ct. at 952 n.6 (quoting Knotts, 460 U.S. at 284, 103 S.Ct. 1081); see also id. at 956, n.* (Sotomayor, J., concurring). That the Court in Smith did not explicitly hold open the question of whether an exponentially broader, high-tech, years-long bulk telephony metadata collection program would infringe on reasonable expectations of privacy does not mean that the Court’s holding necessarily extends so far as to answer that novel question. The Supreme Court itself has recognized that prior Fourth Amendment precedents and doctrines do not always control in cases involving unique factual circumstances created by evolving technology. See, e.g., Kyllo, 533 U.S. at 34, 121 S.Ct. 2038 (\"To withdraw protection of this minimum expectation [of privacy in the home] would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment.”). If this isn’t such a case, then what is? . When an individual makes his property accessible to third parties, he may still retain some expectation of privacy based on his understanding of how third parties typically handle that property. See Bond v. United States, 529 U.S. 334, 338-39, 120 S.Ct. 1462, 146 L.Ed.2d" }, { "docid": "20319310", "title": "", "text": "Pineda-Moreno’s case can record the car’s movements without human intervention—quietly, invisibly, with uncanny precision. A small law enforcement team can deploy a dozen, a hundred, a thousand such devices and keep track of their various movements by computer, with far less effort than was previously needed to follow a single vehicle. The devices create a permanent electronic record that can be compared, contrasted and coordinated to deduce all manner of private information about individuals. By holding that this kind of surveillance doesn’t impair an individual’s reasonable expectation of privacy, the panel hands the government the power to track the movements of every one of us, every day of our lives. The Supreme Court has recognized that advances in “police technology [can] erode the privacy guaranteed by the Fourth Amendment.” Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). To guard against this, courts “must take the long view, from the original meaning of the Fourth Amendment forward.” Id. at 40, 121 S.Ct. 2038. Kyllo followed a line of cases going back to United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), Katz, 389 U.S. at 353, 88 S.Ct. 507, and Silverman v. United States, 365 U.S. 505, 512, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961), which stemmed the erosion of personal privacy wrought by technological advances. In Kyllo, the Court held that use of a thermal imager to detect the heat emanating from defendant’s home was a search for purposes of the Fourth Amendment because the then-new technology enabled police to detect what was going on inside the home—activities the homeowner was entitled to consider private. Any other conclusion, the Court noted, “would leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home.” Kyllo, 533 U.S. at 35-36, 121 S.Ct. 2038 (citing Karo, 468 U.S. at 705, 104 S.Ct. 3296). “While the technology used in the present case was relatively crude,” the Court continued, “the rule we adopt must take account of more sophisticated systems that are already in" }, { "docid": "2982368", "title": "", "text": "see also id. at 956, n.* (Sotomayor, J., concurring). That the Court in Smith did not explicitly hold open the question of whether an exponentially broader, high-tech, years-long bulk telephony metadata collection program would infringe on reasonable expectations of privacy does not mean that the Court’s holding necessarily extends so far as to answer that novel question. The Supreme Court itself has recognized that prior Fourth Amendment precedents and doctrines do not always control in cases involving unique factual circumstances created by evolving technology. See, e.g., Kyllo, 533 U.S. at 34, 121 S.Ct. 2038 (\"To withdraw protection of this minimum expectation [of privacy in the home] would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment.”). If this isn’t such a case, then what is? . When an individual makes his property accessible to third parties, he may still retain some expectation of privacy based on his understanding of how third parties typically handle that property. See Bond v. United States, 529 U.S. 334, 338-39, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) (''[A] bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here. We therefore hold that the agent’s physical manipulation of petitioner's bag violated the Fourth Amendment.”). . The unprecedented scope and technological sophistication of the NSA's program distinguish it not only from the Smith pen register, but also from metadata collections performed as part of routine criminal investigations. To be clear, this opinion is focusing only on the program before me and not any other law enforcement practices. Like the concurring justices in Jones, I cannot \"identify with precision the point at which” bulk metadata collection becomes a search, but there is a substantial likelihood that the line was crossed under the circumstances presented in this case. See Jones, 132 S.Ct. at 964 (Alito, J., concurring). . The global total is 6.6 billion. Ericsson, Mobility Report on the Pulse of Networked" }, { "docid": "20585520", "title": "", "text": "would otherwise be hidden or inaccessible. Confronting the question of \"what limits there are upon [the] power of technology to shrink the realm of guaranteed privacy” in Kyllo, 533 U.S. at 34, 121 S.Ct. 2038, Justice Scalia concluded for the majority that the use of new technology \"to explore details of the home that would previously have been unknowable without physical intrusion” constitutes a search, id. at 40, 121 S.Ct. 2038. \"This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Id. at 34, 121 S.Ct. 2038. As one prominent commentator explained, the Fourth Amendment not only \"permit[s] access to that which technology hides” but also \"protects] that which technology exposes.” Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L.Rev. 561, 580 (2009). . Echoing the sentiments of the Fifth and Eleventh Circuits, the dissent suggests that any privacy concerns raised by the govern- merit’s warrantless acquisition of CSLI should be presented to Congress and addressed legislatively, rather than to the courts for constitutional protection. Post at 388-89. We think the same argument might be made in any case in which a new technological means or investigative practice is employed to obtain personal information and the court must decide the Katz question. In each of these cases, the court is tasked with making an assessment of what privacy interests society might deem reasonable. This is a task for which one might argue the legislative branch is suited, but one that is, as a matter of constitutional interpretation, nonetheless imposed upon the courts. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) (\"It is emphatically the pfovince and duty of the judicial department to say what the law is.”). . Moving beyond her theoretical objections to our holding, our dissenting colleague declares the holding \"bizarre in practice,” citing the fact that the cell service records admitted in this case included not just CSLI but also information we have not deemed Fourth Amendment protected. Post at 386. The § 2703(d) orders in this case specifically requested" }, { "docid": "20585512", "title": "", "text": "is challenged” in order to determine the precise nature of Smith’s Fourth Amendment claim. 442 U.S. at 741, 99 S.Ct. 2577. Specifically, this initial inquiry was made in order to determine whether Smith could claim an invasion of his property or intrusion into a constitutionally protected area, under the traditional trespass-based theory of Fourth Amendment protection. Because the challenged governmental activity was the installation of a pen register \"on telephone company property at the telephone company’s central offices,” Smith could make no such claim. Id. Instead, Smith claimed an invasion of a legitimate expectation of privacy in the numbers he dialed, (Continued) which the government obtained through use of the pen register. Id. at 742, 99 S.Ct. 2577. In this sense, the nature of the governmental activity challenged in this case is not unlike the activities challenged in Karo, Kyllo, and Jones. In Karo and Kyllo, the nature of the challenged governmental activity was the use of technology to acquire certain private information rather than the physical invasion of constitutionally protected property or spaces. See Karo, 468 U.S. at 714, 104 S.Ct. 3296; Kyllo, 533 U.S. at 34-35, 121 S.Ct. 2038. The governmental activity challenged in Jones was of both sorts: installation of a GPS tracking device effected through a trespass onto Jones' property, and use of the device to obtain information about Jones' location and movements over an extended period of time. As previously noted, the majority confined its analysis to the trespass without considering the nature of the information the government subsequently acquired. 132 S.Ct. at 949-54. In the concurrences, five Justices focused on the government’s acquisition of location information and whether this conduct invaded a legitimate expectation of privacy. Because the challenged activity in the present case, like those considered in Karo, Kyllo, and the Jones concurrences, is the government’s non-trespassoiy acquisition of certain information, our inquiry is properly focused on the legitimacy of Appellants’ expectation of privacy in this information. . This \"third-party” doctrine finds its roots in cases involving consensual disclosures to informants or undercover government agents. See United States v. White, 401 U.S. 745," }, { "docid": "15455897", "title": "", "text": "government always invades an individual’s reasonable expectation of privacy when it employs technological devices to track an individual’s moves. Perhaps so. But that question is not before us. No government tracking is at issue here. Rather, the question before us is whether the government invades an individual’s reasonable expectation of privacy when it obtains, from a third party, the third party’s records, which permit the government to deduce location information. Karo, Kyllo, and Jones, all of which involve direct government surveillance activity, tell us nothing about the answer to that question. Instead, the cases that establish the third-party doctrine provide the answer. Under the third-party doctrine, an individual can claim “no legitimate expectation of privacy” in information that he has voluntarily turned over to a third party. Smith, 442 U.S. at 743-44, 99 S.Ct. 2577. The Supreme Court has reasoned that, by “revealing his affairs to another,” an individual “takes the risk ... that the information will be conveyed by that person to the Government.” Miller, 425 U.S. at 443, 96 S.Ct. 1619. The Fourth Amendment does not protect information voluntarily disclosed to a third party because even a subjective expectation of privacy in such information is “not one that society is prepared to recognize as ‘reasonable.’ ” Smith, 442 U.S. at 743, 99 S.Ct. 2577 (internal quotation marks and citation omitted). The government therefore does not engage in a Fourth Amendment “search” when it acquires such information from- a third party. Applying the third-party doctrine to the facts of this case, we hold that Defendants did not have a reasonable expectation of privacy in the historical CSLI. The Supreme Court’s reasoning in Smith controls. There, the defendant challenged the government’s use of a pen register — a device that could record the outgoing phone numbers dialed from his home telephone. Id. at 737, 99 S.Ct. 2577. The Court held that the defendant could “claim no legitimate expectation of privacy” in the numbers he had dialed because he had “voluntarily conveyed” those numbers to the phone company by “ ‘exposing]’ that information to” the phone company’s “equipment in the ordinary" }, { "docid": "12633948", "title": "", "text": "such as that set forth by § 2703(d), was necessary to obtain the information. Indeed, I am aware of no case where the Court has expressly found an expectation of privacy diminished because of the third-party doctrine and yet has concluded that a warrant was required. But cf. Riley v. California, - U.S.-, 134 S.Ct. 2473, 2488, 189 L.Ed.2d 430 (2014) (holding that a warrant is generally required to search an arrestee’s cell phone, even though arrestees have a diminished expectation of privacy because of their status as arrestees). Whether we ignored the more specific historical privacy interest in favor of the third-party doctrine or found that the historical privacy interest was diminished, though, privacy interests long recognized as reasonable by society, which therefore historically necessitated a showing of probable cause and a warrant under the Fourth Amendment in order to breach, would be violated without a warrant and on a showing of less than probable cause, simply because we happen to use technology to do more efficiently what we used to do without technology. I do not believe that Supreme Court precedent supports the conclusion that the long-established privacy interests protected by the Fourth Amendment should be subject to the whims of technology. See Kyllo, 533 U.S. at 34, 121 S.Ct. at 2043 (2001) (“To withdraw protection of this minimum expectation [of privacy] would be to permit ... technology to erode the privacy guaranteed by the Fourth Amendment.”). And even if the Court were prepared to conclude that a privacy interest diminished- by the third-party doctrine nonetheless required a warrant to breach, it would still need to articulate why one particular expectation of privacy diminished by the third-party doctrine was sufficient to outweigh the government's general interest in crime fighting, while a different expectation of privacy diminished by the third-party doctrine was not, unless the more specific historical expectation of privacy negates the effects of the third-party doctrine in evaluating the privacy interest for purposes of conducting the reasonableness analysis. . I recognize that inns existed in the Framers' day. . Alexander Graham Bell obtained a patent for the" }, { "docid": "20585519", "title": "", "text": "name, and Jordan used an alias or proxy on his account, although the record does not indicate that these actions were taken specifically to protect Appellants' privacy interests. . In Smith, for instance, the Supreme Court rejected the notion that different constitutional rules should apply to different technological means of engaging in the same form of communication, lest \"a crazy quilt” be made of the Fourth Amendment. 442 U.S. at 745, 99 S.Ct. 2577. Just as a caller could claim no legitimate expectation of privacy in telephone connections made personally by an operator, Smith could claim no privacy expectation in numbers he dialed to connect his calls through the phone' company's automatic switching equipment. Id. at 744, 99 S.Ct. 2577. Smith, in this way, reflects the principle that the use of new technology to hide from view what would otherwise be exposed cannot by itself expand Fourth Amendment rights where none would otherwise exist. The natural corollary to this principle is that a technological advance alone cannot constrict Fourth Amendment protection for private matters that would otherwise be hidden or inaccessible. Confronting the question of \"what limits there are upon [the] power of technology to shrink the realm of guaranteed privacy” in Kyllo, 533 U.S. at 34, 121 S.Ct. 2038, Justice Scalia concluded for the majority that the use of new technology \"to explore details of the home that would previously have been unknowable without physical intrusion” constitutes a search, id. at 40, 121 S.Ct. 2038. \"This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Id. at 34, 121 S.Ct. 2038. As one prominent commentator explained, the Fourth Amendment not only \"permit[s] access to that which technology hides” but also \"protects] that which technology exposes.” Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L.Rev. 561, 580 (2009). . Echoing the sentiments of the Fifth and Eleventh Circuits, the dissent suggests that any privacy concerns raised by the govern- merit’s warrantless acquisition of CSLI should be presented to Congress and addressed legislatively, rather than to the courts for constitutional" }, { "docid": "12633889", "title": "", "text": "220 (1979), implicitly found no historical expectation of privacy implicated by the information that we give to a service provider for the purpose of making a telephone call other than the expectation of privacy that we generally do not have in information that we voluntarily convey to a third party. Since, like Smith, this case involves information that we knowingly expose to a service provider for the purpose of making a telephone call and no more specific historically recognized privacy interest is implicated by cell-site location information, this case is necessarily controlled by Smith. But when, historically, we have a more specific expectation of privacy in a particular type of information, the more specific privacy interest must govern the Fourth Amendment analysis, even though we have exposed the information at issue to a third party by using technology to give, receive, obtain, or otherwise use the protected information. In other words, our historical expectations of privacy do not change or somehow weaken simply because we now happen to use modern technology to en gage in activities in which we have historically maintained protected privacy interests. Neither can the protections of the Fourth Amendment. See Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 2043, 150 L.Ed.2d 94 (2001) (“To withdraw protection of this minimum expectation [of privacy] would be to permit ..-. technology to erode the privacy guaranteed by the Fourth Amendment.”). So reliance on the third-party doctrine must be limited to those cases involving alleged privacy interests that do not implicate a more specific historically recognized reasonable privacy interest. I. Before exploring why this is so, I pause to express my view that the Dissent is right to raise its concerns. In our time, unless a person is willing to live “off the grid,” it is nearly impossible to avoid disclosing the most personal of information to third-party service providers on a constant basis, just to navigate daily life. And the thought that the government should be able to access such information without the basic protection that a warrant offers is nothing less than chilling. Today’s world," }, { "docid": "2982369", "title": "", "text": "365 (2000) (''[A] bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here. We therefore hold that the agent’s physical manipulation of petitioner's bag violated the Fourth Amendment.”). . The unprecedented scope and technological sophistication of the NSA's program distinguish it not only from the Smith pen register, but also from metadata collections performed as part of routine criminal investigations. To be clear, this opinion is focusing only on the program before me and not any other law enforcement practices. Like the concurring justices in Jones, I cannot \"identify with precision the point at which” bulk metadata collection becomes a search, but there is a substantial likelihood that the line was crossed under the circumstances presented in this case. See Jones, 132 S.Ct. at 964 (Alito, J., concurring). . The global total is 6.6 billion. Ericsson, Mobility Report on the Pulse of Networked Society, at 4 (Nov.2013), available at http:// www.ericsson.com/res/docs/2013/ericssonmobility-report-november-2013 .pdf. . http://files.ctia.org/pdl/CTIA_Survey_YE_ 2012_Graphics-FINAL.pdf. . Mobile phones are rapidly replacing traditional landlines, with 38.2% of households going \"wireless-only” in 2012. CTIA, Wireless Quick Facts, http://www.ctia.org/yourwireless-Iife/how-wireless-works/wirelessquick-facts (last visited Dec.. 10, 2013); see also Jeffrey Sparshott, More People Say Goodbye to Landlines, Wall St. J., Sept. 6, 2013, at A5. . http://pewmternet.org/Commentary/2012/ F ebruary/Pew-Internet-Mobile. aspx. . http://www.ctia.org/your-wireless-life/howwireless-works/wireless-quick-facts. . http://pewinternet.org/Reports/2013/CellActivities/Main-Findings.aspx. . Mobile Telephone, Britannica.com, http:// www.britannica. com/EB checked/topic/ 1482373/mobile-telephone? anchor=ref 1079017 (last visited Dec. 13, 2013) (\"[A] Japanese system was the first cellular system to be deployed, in 1979.”); Tom Farley, Mobile telephone history, Telektronikk, March/ April 2005, at 28 (\"An 88 cell system in the challenging cityscape of Tokyo began in December, 1979.... The first North American commercial system began in August, 1981 in Mexico City.”). . It is not clear from the pleadings whether \"telephony metadata” and “comprehensive communications routing information” includes data relating to text messages. See supra note 16. If it does, then in 2012, the Government collected an additional six billion communications each day (69,635" }, { "docid": "2982327", "title": "", "text": "investigations in cases involving imminent threats of terrorism. See Chandler, 520 U.S. at 318-19, 117 S.Ct. 1295 (“Notably lacking in respondents’ presentation is any indication of a concrete danger demanding departure from the Fourth Amendment’s main rule.”). Thus, plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the Government’s interest in collecting and analyzing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the Fourth Amendment. I realize, of course, that such a holding might appear to conflict with other trial courts, see, e.g., United States v. Moalin, Crim. No. 10-4246, 2013 WL 6079518, at *5-8 (S.D.Cal. Nov. 18, 2013) (holding that bulk telephony metadata collection does not violate Fourth Amendment); United States v. Graham, 846 F.Supp.2d 384, 390-405 (D.Md.2012) (holding that defendants had no reasonable expectation of privacy in historical cell-site location information); United States v. Gordon, Crim. No. 09-153-02, 2012 WL 8499876, at *1-2 (D.D.C. Feb. 6, 2012) (same), and with longstanding doctrine that courts have applied in other contexts, see, e.g., Smith, 442 U.S. at 741-46, 99 S.Ct. 2577, Miller, 425 U.S. at 443, 96 S.Ct. 1619. Nevertheless, in reaching this decision, I find comfort in the statement in the Supreme Court’s recent majority opinion in Jones that “[a]t bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’ ” 132 S.Ct. at 950 (2012) (quoting Kyllo, 533 U.S. at 34, 121 S.Ct. 2038). Indeed, as the Supreme Court noted more than a decade before Smith, “[t]he basic purpose of th[e Fourth] Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Mun. Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (emphasis added); see also Quon, 130 S.Ct. at 2627 (“The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government, without regard to whether the government actor is investigating crime or performing another function.” (internal quotation" }, { "docid": "12633949", "title": "", "text": "I do not believe that Supreme Court precedent supports the conclusion that the long-established privacy interests protected by the Fourth Amendment should be subject to the whims of technology. See Kyllo, 533 U.S. at 34, 121 S.Ct. at 2043 (2001) (“To withdraw protection of this minimum expectation [of privacy] would be to permit ... technology to erode the privacy guaranteed by the Fourth Amendment.”). And even if the Court were prepared to conclude that a privacy interest diminished- by the third-party doctrine nonetheless required a warrant to breach, it would still need to articulate why one particular expectation of privacy diminished by the third-party doctrine was sufficient to outweigh the government's general interest in crime fighting, while a different expectation of privacy diminished by the third-party doctrine was not, unless the more specific historical expectation of privacy negates the effects of the third-party doctrine in evaluating the privacy interest for purposes of conducting the reasonableness analysis. . I recognize that inns existed in the Framers' day. . Alexander Graham Bell obtained a patent for the telephone on March 7, 1876. See http ://www.pbs. org/transistor/album 1/ addlbios/bellag.html (last visited Apr. 16, 2015). He successfully transmitted speech over the line five days later. Id. But the United States House of Representatives has since recognized Antonio Meucci as the inventor of the telephone. H.R. Res. 269, 107th Cong. (June 11, 2002). Meucci reportedly developed the first version of a working telephone in 1860. See id. . The Supreme Court has held that addressing and other routing information on paper letters, like pen-register and trap-and-trace information (including the date and time of listed calls) regarding telephone calls, is accessible to the government without a warrant. See Ex parte Jackson, 96 U.S. 727, 736, 24 L.Ed. 877; Smith, 442 U.S. 735, 99 S.Ct. 2577. Email routing information, such as the sender, the receiver, the date, the time, and other routing information (such as Internet Protocol addresses) implicates the same expectations of privacy as older versions of routing information found on paper letters and in pen-register and trap-and-trace information. See United States v. Forrester, 512 F.3d" } ]

[ { "docid": "14472703", "title": "", "text": "that injunctive relief is “an extraordinary measure.” The court is of the view that before issuing a preliminary injunction inquiry must first be made as to the nature of the administrative determination under judicial consideration. If it is a final agency determination under 19 U.S.C. §§ 1303, 1671d or 1673d, the party seeking injunctive relief must make some showing of immediate and irreparable injury beyond the mere invocation of Zenith. In sum, the present case is clearly distinguishable from Zenith. In Zenith there would have been no unliquidated entries subject to the reach of a judicial order, thereby effectively negating judicial review rights. Here, the statutory scheme, particularly plaintiffs’ right to judicial review, will not be impaired, and the merits of the action will not be mooted, even though no injunction issues. Accordingly, plaintiffs having made no showing of irreparable harm by any probative evidence, their motion for a preliminary injunction is denied. . As explained by the Federal Circuit in Zenith: This result [i.e., liquidation] is required, in the absence of a preliminary injunction, by two sections of the Trade Agreements Act of 1979 [19 U.S.C. §§ 1516a(e) and 1516a(c)(l) ]____ Once liquidation occurs, a subsequent decision by the trial court on the merits ... can have no effect on the dumping duties assessed on entries ... during the review period. Id. at 810. . In this respect, injunctions issued in the section 751 review context are of the All Writs Act type, designed to preserve the reviewing court's jurisdiction, rather than of the rule 65 variety. See AL Tech Specialty Steel Corp. v. United States, 575 F.Supp. 1285 (CIT 1983). Cf. Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir.1983). . It is true that imports of steel wire strand which are entered pending final judicial review will be liquidated. But this fact alone does not answer the question whether plaintiffs are entitled to this court’s assistance in maintaining the advantage that suspension of liquidation might otherwise give them. Plaintiffs still must make some showing that injunctive relief is warranted under the four criteria of S.J." } ]

[ { "docid": "16197531", "title": "", "text": "contains the general rule for the liquidation of pre-Timken notice entries and provides: In the case of a determination for which binational panel review is requested pursuant to article 1904 of the NAFTA or of the Agreement, entries of merchandise covered by such determination shall be liquidated in accordance with the determination of the administering authority or the Commission, if they are entered, or withdrawn from warehouse, for consumption, on or before the date of publication in the Federal Register by the administering authority of notice of a final decision of a binational panel, or of an extraordinary challenge committee, not in harmony with that determination. Such notice of a decision shall be published within 10 days of the date of the issuance of the panel or committee decision. 19 U.S.C. § 1516a(g)(5)(B). There is, however, an exception to the general rule in 19 U.S.C. § 1516a(g)(5)(C), which is entitled “Suspension of liquidation” and states: Notwithstanding the provisions of sub-paragraph (B), in the case of a determination described in clause (iii) [administrative review] or (vi) [scope ruling] of subsection (a)(2)(B) of this section for which binational panel review is requested pursuant to article 1904 of the NAFTA or of the Agreement, the administering authority, upon request of an interested party who was a party to the proceeding in connection with which the matter arises and who is a participant in the binational panel review, shall order the continued suspension of liquidation of those entries of merchandise covered by the determination that are involved in the review pending the final disposition of the review. 19 U.S.C. § 1516a(g)(5)(C)(i). For Commerce, the language of § 1516a(g)(5)(B) applies and all plaintiffs entries made prior to the publication of the Timken Notice are to be liquidated in accordance with the original determination. See Def.’s Opp’n 13. For plaintiff, the exception found in § 1516a(g)(5)(C) applies and preserved its entries for liquidation with no duties following revocation of the AD/CVD Orders. Plaintiff relies on Tembec II as support for its position that its entries, all of which were made prior to the Timken Notice, should" }, { "docid": "14222691", "title": "", "text": "the time §§ 1516a(g)(5)(B) and (C) were enacted. It necessarily follows that Congress, having intended parallel remedies, intended that the suspension of liquidation provided for in § 1516a(g)(5)(C) would provide the same result following a NAFTA panel decision, as would an injunction issued by this Court. Tembec II, 30 CIT at _, 461 F.Supp.2d at 1365-66. Therefore, as the court expressly adopts the Tembec II panel’s analysis, it finds that Commerce is obligated to liquidate all of CWB’s pre-Timken Notice entries, whose liquidation has been suspended, without regard to duties. This result is demanded by both logic as well as the statute. That is, because the subject imports caused no injury during any time relevant to this inquiry, CWB should owe no duties. Indeed, while defendant claims that the pre-Timken Notice duty deposits may be kept by the United States, the Notice of Revocation appears to agree with the court. The notice reads: This revocation does not affect the liquidation of entries made prior to January 2, 2006. Any entries of subject merchandise entered before January 2, 2006, are subject to administrative review. If no review is requested we will liquidate at the rate in effect at the time of entry pursuant to 19 CFR 351.212(c). Notice of Revocation, 71 Fed. Reg. at 8,275 (emphasis added). Defendant focuses on the first sentence of this paragraph and insists that, because Commerce stated that the “revocation does not affect the liquidation” of pre-Timken Notice entries, those entries must be liquidated under the now-invalidated AD/CVD Orders. As noted, however, an administrative review was requested in this case. The clear import of the last two sentences of this paragraph, therefore, is that, if a review is requested, then the entries will be liquidated in accordance with the review results. See 19 C.F.R. § 351.212(b)(1) (stating that, afer a review of an antidumping duty order, Commerce “will instruct the Customs Service to assess antidumping duties by applying the assessment rate to the entered value of the merchandise”); 19 C.F.R. § 351.212(b)(2) (stating that, after an review of a countervailing duty order, Commerce “normally will instruct" }, { "docid": "14222684", "title": "", "text": "available for liquidation in accordance with law.”). Therefore, the Tembec II Court ordered Commerce to instruct Customs to liquidate plaintiffs’ pr e-Timken notice entries without the imposition of unfair trade duties. See id. The court cannot discern a substantial difference between the legal and factual issues presented in this case and those faced by the Court in Tembec II. In each case, (1) the ITC made an affirmative injury determination; (2) after an appeal to a NAFTA panel, the ITC made a negative injury determination; (3) liquidation of contested entries was suspended by request for administrative review; and (4) the AD/CVD orders were revoked. Therefore, the court will follow Tembec II and order that all of CWB’s entries, whose liquidation has been suspended, be liquidated in accordance with the ITC’s final negative determination. In assessing the parties’ arguments, and concluding that the plaintiffs should prevail, the Tembec II Court reasoned that the “continued” suspension of liquidation provided for in § 1516a(g)(5)(C) “acts as the equivalent of an injunction against liquidation and thus halts liquidation until the suspension expires.” Id. at _, 461 F.Supp.2d at 1360. In reaching its conclusion, the Tembec II Court examined the legislative history of 19 U.S.C. §§ 1516a(g)(5)(B) and (C). The Tembec II panel concluded that the legislative history of these provisions revealed “that they were enacted to achieve the goals of prompt liquidation of uncontested entries and the ultimate liquidation of contested entries in accordance with the final litigation results.” Id. at _, 461 F.Supp.2d at 1363. The Court continued: “Viewed in the context of the law as it existed when the subsections were drafted, it becomes apparent that § 1516a(g)(5)(B) operates more narrowly than Defendants argue, and that the operation of § 1516a(g)(5)(C) is necessarily broader.” Id. at _, 461 F.Supp.2d at 1363. Tembec II explains that §§ 1516a(g)(5)(B) and (C) “first appeared in the United States-Canada Free-Trade Agreement Implementation Act of 1988 (‘CAFTA’).” Id. at _, 461 F.Supp.2d at 1363 (citing Pub.L. No. 100-449, 102 Stat. 1851 (1988)). Further, the Court noted that CAFTA’s Statement of Administrative Action (“US-CFTA SAA”) demonstrated that §" }, { "docid": "14222686", "title": "", "text": "1516a(g) “was enacted to reflect the law relating to appeals to [the United States Court of International Trade] as it existed at that time: ‘Article 1904(15)(d) of the Agreement requires that the United States and Canada amend their respective laws in order to ensure that existing procedures concerning the refund, with interest, of duties operate to give effect to a final binational panel decision.’ ” Tembec II, 30 CIT at _, 461 F.Supp.2d at 1363 (quoting US-CFTA SAA at 265-66). In light of that language, the Tembec II panel concluded that Congress wished to set up a system in which appeals to both NAFTA binational panels and to this Court “would result in the same relief with respect to refunds” of cash deposits. See id. at _, 461 F.Supp.2d at 1363. The Court additionally looked to US-CFTA SAA’s explanation: See id. at _, 461 F.Supp.2d at 1363-64 (footnote omitted). Accordingly, the Court reasoned that the subsections’ legislative history confirmed that Congress “intended subsections 1516a(g)(5)(B) and (C) to provide for the same liquidation results when appeals were taken to a NAFTA panel, as when appeals of final determinations were taken to this Court.” Id. at _, 461 F.Supp.2d at 1364. In order to enable a successful plaintiff to reap the fruits of its victory...the statute authorizes the CIT [United States Court of International Trade] to enjoin the liquidation of entries of merchandise covered by certain types of challenged AD/CVD determinations upon request for such relief and a proper showing that the relief should be granted under the circumstances. 19 U.S.C. 1516a(c)(2). Under existing caselaw, injunctive relief is granted automatically upon request in cases involving challenges to AD/CVD determinations made during the assessment stage of an AD/CVD proceeding. Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed. Cir. 1983). However, injunctive relief is rarely, if ever, granted in cases involving challenges to AD/ CVD determinations made during the initial investigation stage of an AD/CVD proceeding. See, e.g., American Spring Wire Corp. v. United States, 578 F. Supp. 1405 (CIT 1984). The Tembec II panel elaborated: Because a NAFTA panel would have" }, { "docid": "14222681", "title": "", "text": "though the injury determination underlying the AD/CVD Order has been wholly invalidated. The parties agree that the resolution of this issue hinges on the interpretation and application of 19 U.S.C. §§ 1516a(g)(5)(B) and (C). Section 1516a(g) (5)(B) contains the general rule for the liquidation of pre-Timken Notice entries and provides: In the case of a determination for which binational panel review is requested pursuant to article 1904 of the NAFTA or of the Agreement, entries of merchandise covered by such determination shall be liquidated in accordance with the determination of the administering authority or the Commission, if they are entered, or withdrawn from warehouse, for consumption on or before the date of publication in the Federal Register by the administering authority of [the Timken] notice of a final decision of a binational panel, or of an extraordinary challenge committee, not in harmony with that determination. Such notice of a decision shall be published within 10 days of the date of the issuance of the panel or committee decision. 19 U.S.C. § 1516a(g)(5)(B). Section 1516a(g)(5)(C), however, entitled “Suspension of liquidation,” contains an exception to the general rule. This provision states: Notwithstanding the provisions of subparagraph (B), in the case of a determination described in clause (iii) [administrative review] or (vi) [scope ruling] of subsection (a)(2)(B) of this section for which binational panel review is requested pursuant to article 1904 of the NAFTA or of the Agreement, the administering authority, upon request of an interested party who was a party to the proceeding in connection with which the matter arises and who is a participant in the binational panel review, shall order the continued suspension of liquidation of those entries of merchandise covered by the determination that are involved in the review pending the final disposition of the review. 19 U.S.C. § 1516a(g)(5)(C)(i). For defendant, the language of § 1516a(g)(5)(B) applies here and therefore, all of CWB’s entries made prior to the publication of the Timken Notice are to be liquidated in accordance with the deposit rates found in the AD/CVD Orders, even though the orders have been revoked. See Def.’s Reply" }, { "docid": "14222649", "title": "", "text": "NAFTA Panel Reviews; Completion of Panel Review, 71 Fed. Reg. 4,896 (Dep’t of Commerce Jan. 30, 2006) (notice). On January 31, 2006, pursuant to 19 U.S.C. § 1516a(g)(5)(B), Commerce published in the Federal Register notice that the NAFTA panel’s final decision was not in harmony with the ITC’s original affirmative injury determination. See HRS Wheat from Canada: NAFTA Panel Decision, 71 Fed. Reg. 5,050 (Dep’t of Commerce Jan. 31, 2006) (the “Timken Notice”); see also Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990). This notice had an effective date of January 2, 2006, and stated that it “serve [d] to suspend liquidation of entries of subject merchandise entered, or withdrawn from warehouse, for consumption on or after January 2, 2006, i.e., ten days from the issuance of the Notice of Final Panel Action, at the current cash deposit rate.” Timken Notice, 71 Fed. Reg. at 5,051. Thus, the notice preserved from liquidation those entries made on or after January 2, 2006, but did nothing to prevent liquidation of earlier entries. On February 16, 2006, the Department published the Notice of Revocation, which “revok[ed] the countervailing duty order and an-tidumping duty order on [HRS] wheat from Canada....” Notice of Revocation, 71 Fed. Reg. at 8,275. Although, as shall be seen, the notice itself appears to indicate otherwise, defendant insists that the Notice of Revocation did not affect the liquidation of entries made prior to January 2, 2006. See Def.’s Br. 10. Plaintiff CWB’s entries were made in September 2004. At the time they were entered, CWB’s goods were subject to the duties imposed by the then-existing AD/CVD Orders. As a result, CWB paid cash deposits based on the 5.29 percent net subsidy rate and 8.86 percent antidumping duty margin. Liquidation of these entries was suspended on October 31, 2005, when CWB filed a request for administrative review of the AD/CVD Orders. See Canadian Wheat Bd. v. United States, 31 CIT _, _, 491 F.Supp.2d 1234, 1239 (2007) (citations omitted). On February 21, 2007, plaintiffs CWB and the Federal Government of Canada commenced actions (since consolidated) in this Court," }, { "docid": "19784276", "title": "", "text": "1516a(a)(2)(B), (g)(2). Additionally, by virtue of the United States’ membership in the WTO and its accession to the Anti-dumping and Subsidies agreements, the United States has agreed to certain international standards governing the imposition of AD and CVD orders. These obligations are separate from those imposed by U.S. law under Title VII. Thus, the same AD or CVD order may be subject to challenge under either set of obligations. Challenges to an AD or CVD order under the WTO agreements occur through international arbitration under the DSU. Challenges to an AD or CVD order as inconsistent with U.S. law may be brought before this Court, or, where the case involves Canada or Mexico, before a NAFTA binational panel. The bi-national panel sits in the place of a U.S. court, interpreting U.S. law according to U.S. standards of review. See NAFTA art.1904.2. Ordinarily, when this Court or a NAFTA panel finds that a given AD or CVD order is inconsistent with U.S. law, the court or NAFTA panel issues a ruling remanding the determination to Commerce or the ITC. Commerce and the ITC are obligated to act on these remands by issuing new determinations “not inconsistent” with the findings of the court or NAFTA panel. Unlike litigation before the court or a NAFTA panel, WTO Members are not required automatically to comply with the recommendations of a WTO panel or the AB. While compliance is encouraged, the DSU contemplates three different responses to an adverse WTO panel report. See URAA SAA at 1008-09. A Member may elect to bring its domestic practices in line with the WTO’s recommendations. Id. at 1009. Alternatively, Members may substitute a compensatory trade agreement that lowers other barriers to trade while leaving an objectionable practice in place. Id. Finally, a Member may choose not to comply with the WTO’s recommendation. Id. When there is a dispute over a Member’s compliance with an adverse report, Article 21.5 of the DSU provides for the formation of an arbitration panel to determine whether a Member has taken measures to comply with a final report. See DSU art. 21.5. If" }, { "docid": "14222688", "title": "", "text": "no equity powers...the device used to achieve [the same liquidation results when appeals were taken either to a NAFTA panel or to this Court] was an injunction-like suspension of liquidation. Hence, because injunctions were “rarely, if ever, granted” when appeals were taken to this Court following final determinations at the initial investigation stage, i.e., the process leading to an AD/CVD order, § 1516a(g)(5)(B) makes no provision for a suspension of liquidation when such final determinations are appealed to NAFTA panels. On the other hand, because injunctions were viewed by Congress as automatic when requested following the appeal of a periodic review to this Court, § 1516a(g)(5)(C) makes the “continued” suspension of liquidation automatic when these results are appealed to a NAFTA panel. Id. at _, 461 F.Supp.2d at 1364 (footnotes omitted). Thus, the Tembec II panel concluded that the simultaneously enacted §§ 1516a(g)(5)(B) and (C) were designed to “codify Congress’s understanding of the law” at the time and that “[a]n examination of contemporaneous judicial decisions... serve[s] to clarify how they apply to the[se] facts....” Id. at _, 461 F.Supp.2d at 1364-65. Looking to caselaw at the time the statutes were enacted, the Tembec II panel explained that “[w]hen the subsections were drafted, there was no disagreement that if a periodic review were requested and an injunction granted, all unliquidated merchandise would be liquidated in accordance with the ultimate determination of: (1) the appeal of the periodic review; or (2) the appeal of the underlying AD duty order.” Id. at _, 461 F.Supp.2d at 1365 (footnote omitted). To illustrate this point, Tembec II cites Sonco Steel Tube Div., Ferrum, Inc. v. United States, 12 CIT 990, 993, 698 F. Supp. 927, 930 (1988) (“Apparently, there is agreement that where requested annual reviews have not been completed before a court decision finding an affirmative antidumping determination invalid there is no basis for liquidation with antidumping duties. Therefore, a court order totally invalidating an [agency’s] original determination, which order occurs in the midst of an annual review, will result in the suspended entries being liquidated with no antidumping duties, [even without an injunction" }, { "docid": "14222682", "title": "", "text": "entitled “Suspension of liquidation,” contains an exception to the general rule. This provision states: Notwithstanding the provisions of subparagraph (B), in the case of a determination described in clause (iii) [administrative review] or (vi) [scope ruling] of subsection (a)(2)(B) of this section for which binational panel review is requested pursuant to article 1904 of the NAFTA or of the Agreement, the administering authority, upon request of an interested party who was a party to the proceeding in connection with which the matter arises and who is a participant in the binational panel review, shall order the continued suspension of liquidation of those entries of merchandise covered by the determination that are involved in the review pending the final disposition of the review. 19 U.S.C. § 1516a(g)(5)(C)(i). For defendant, the language of § 1516a(g)(5)(B) applies here and therefore, all of CWB’s entries made prior to the publication of the Timken Notice are to be liquidated in accordance with the deposit rates found in the AD/CVD Orders, even though the orders have been revoked. See Def.’s Reply Br. 19-20. For CWB, the exception found in § 1516a(g)(5)(C) applies and its entries were preserved for liquidation without unfair trade duties following revocation of the AD/CVD Orders. See CWB Br. 9-11. In other words, CWB contends that its request for an administrative review suspended liquidation of its merchandise entered before publication of the Timken Notice. As a result, CWB insists that all of its entries, whose liquidation was suspended, must be liquidated at a rate of zero as a result of the revocation of the AD/CVD Orders. Plaintiff relies on Tembec II to support this position. In Tembec II, this Court found that 19 U.S.C. § 1516a(g)(5)(B) was inapplicable to pr e-Timken notice entries when liquidation of those entries had been suspended. The Court held that, in those circumstances, 19 U.S.C. § 1516a(g)(5)(C) controlled. See Tembec II, 30 CIT at _, 461 F.Supp.2d at 1367 (“Entries, the liquidation of which has been suspended, cannot, then, be liquidated with AD/CV duties under these conditions.... Rather, Congress provided for a suspension of liquidation to keep entries" }, { "docid": "16197513", "title": "", "text": "Review, which by its terms was effective as of January 24, 2006. See Article 1904 NAFTA Panel Reviews; Completion of Panel Review, 71 Fed.Reg. 4896 (Dep’t of Commerce Jan. 30, 2006) (notice). On January 31, 2006, pursuant to 19 U.S.C. § 1516a(g)(5)(B), Commerce published in the Federal Register notice that the NAFTA panel’s final decision was not in harmony with the Commission’s original affirmative injury determination. See HRS Wheat from Canada: NAFTA Panel Decision, 71 Fed.Reg. 5050 (Dep’t of Commerce Jan. 31, 2006) (“Timken Notice”); see also Timken Co. v. United States, 893 F.2d 337, 340 (Fed.Cir.1990). This notice had an effective date of January 2, 2006. The notice stated that it “serve[d] to suspend liquidation of entries of subject merchandise entered, or withdrawn from warehouse, for consumption on or after January 2, 2006, i.e., 10 days from the issuance of the Notice of Final Panel Action, at the current cash deposit rate.” Timken Notice, 71 Fed.Reg. at 5051. Thus, the notice preserved from liquidation those entries made on or after January 2, 2006, but did nothing to prevent liquidation of earlier entries made with unfair trade duties in place. Commerce took this action even though it recognized that the ITC’s negative determination removed the foundation for the AD/CYD Orders. That is, the ITC’s October 2003 affirmative injury determination had been reversed. In keeping with this reversal, on February 16, 2006, the Department published the Notice of Revocation, which “revok[ed] the countervailing duty order and antidumping duty order on [HRS] wheat from Canada....” Notice of Revocation, 71 Fed.Reg. at 8275. Nonetheless, Commerce explicitly stated that the Notice of Revocation “[did] not affect the liquidation of entries made prior to January 2, 2006.” Id. Plaintiffs entries were made in September 2004. At the time plaintiff entered its merchandise, the goods were subject to the duties imposed by the then-existing AD/CVD Orders. As a result, the CWB paid cash deposits based on the 5.29 percent net subsidy rate and 8.86 percent antidumping duty margin. Liquidation of these entries was suspended on October 31, 2005, when the CWB filed a request for an" }, { "docid": "16197532", "title": "", "text": "[scope ruling] of subsection (a)(2)(B) of this section for which binational panel review is requested pursuant to article 1904 of the NAFTA or of the Agreement, the administering authority, upon request of an interested party who was a party to the proceeding in connection with which the matter arises and who is a participant in the binational panel review, shall order the continued suspension of liquidation of those entries of merchandise covered by the determination that are involved in the review pending the final disposition of the review. 19 U.S.C. § 1516a(g)(5)(C)(i). For Commerce, the language of § 1516a(g)(5)(B) applies and all plaintiffs entries made prior to the publication of the Timken Notice are to be liquidated in accordance with the original determination. See Def.’s Opp’n 13. For plaintiff, the exception found in § 1516a(g)(5)(C) applies and preserved its entries for liquidation with no duties following revocation of the AD/CVD Orders. Plaintiff relies on Tembec II as support for its position that its entries, all of which were made prior to the Timken Notice, should be liquidated in accordance with the ITC’s negative injury determination. In Tembec II, the Court found that the general rule of 19 U.S.C. § 1516a(g)(5)(B) did not apply to pre-Timken notice entries when liquidation of those entries had been suspended. In that case, the court found that 19 U.S.C. § 1516a(g)(5)(C) controlled. See Tembec II, 30 CIT at -, 461 F.Supp.2d at 1367 (“Entries, the liquidation of which has been suspended, cannot, then, be liquidated with AD/CV duties under these conditions.... Rather, Congress provided for a suspension of liquidation to keep entries available for liquidation in accordance with law.”); see also Asociacion Colombiana de Exportadores de Flores v. United States, 916 F.2d 1571, 1577 (Fed.Cir.1990) (“The flaw in the government’s argument is that without a valid antidumping determination in the original order, there can be no valid determination in a later annual review.”). Thus, the Tembec II Court ordered Commerce to instruct Customs to liquidate all of plaintiffs’ subject entries, including those made prior to the Timken notice, without unfair trade duties. The court cannot" }, { "docid": "14222687", "title": "", "text": "were taken to a NAFTA panel, as when appeals of final determinations were taken to this Court.” Id. at _, 461 F.Supp.2d at 1364. In order to enable a successful plaintiff to reap the fruits of its victory...the statute authorizes the CIT [United States Court of International Trade] to enjoin the liquidation of entries of merchandise covered by certain types of challenged AD/CVD determinations upon request for such relief and a proper showing that the relief should be granted under the circumstances. 19 U.S.C. 1516a(c)(2). Under existing caselaw, injunctive relief is granted automatically upon request in cases involving challenges to AD/CVD determinations made during the assessment stage of an AD/CVD proceeding. Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed. Cir. 1983). However, injunctive relief is rarely, if ever, granted in cases involving challenges to AD/ CVD determinations made during the initial investigation stage of an AD/CVD proceeding. See, e.g., American Spring Wire Corp. v. United States, 578 F. Supp. 1405 (CIT 1984). The Tembec II panel elaborated: Because a NAFTA panel would have no equity powers...the device used to achieve [the same liquidation results when appeals were taken either to a NAFTA panel or to this Court] was an injunction-like suspension of liquidation. Hence, because injunctions were “rarely, if ever, granted” when appeals were taken to this Court following final determinations at the initial investigation stage, i.e., the process leading to an AD/CVD order, § 1516a(g)(5)(B) makes no provision for a suspension of liquidation when such final determinations are appealed to NAFTA panels. On the other hand, because injunctions were viewed by Congress as automatic when requested following the appeal of a periodic review to this Court, § 1516a(g)(5)(C) makes the “continued” suspension of liquidation automatic when these results are appealed to a NAFTA panel. Id. at _, 461 F.Supp.2d at 1364 (footnotes omitted). Thus, the Tembec II panel concluded that the simultaneously enacted §§ 1516a(g)(5)(B) and (C) were designed to “codify Congress’s understanding of the law” at the time and that “[a]n examination of contemporaneous judicial decisions... serve[s] to clarify how they apply to the[se] facts....” Id." }, { "docid": "14222683", "title": "", "text": "Br. 19-20. For CWB, the exception found in § 1516a(g)(5)(C) applies and its entries were preserved for liquidation without unfair trade duties following revocation of the AD/CVD Orders. See CWB Br. 9-11. In other words, CWB contends that its request for an administrative review suspended liquidation of its merchandise entered before publication of the Timken Notice. As a result, CWB insists that all of its entries, whose liquidation was suspended, must be liquidated at a rate of zero as a result of the revocation of the AD/CVD Orders. Plaintiff relies on Tembec II to support this position. In Tembec II, this Court found that 19 U.S.C. § 1516a(g)(5)(B) was inapplicable to pr e-Timken notice entries when liquidation of those entries had been suspended. The Court held that, in those circumstances, 19 U.S.C. § 1516a(g)(5)(C) controlled. See Tembec II, 30 CIT at _, 461 F.Supp.2d at 1367 (“Entries, the liquidation of which has been suspended, cannot, then, be liquidated with AD/CV duties under these conditions.... Rather, Congress provided for a suspension of liquidation to keep entries available for liquidation in accordance with law.”). Therefore, the Tembec II Court ordered Commerce to instruct Customs to liquidate plaintiffs’ pr e-Timken notice entries without the imposition of unfair trade duties. See id. The court cannot discern a substantial difference between the legal and factual issues presented in this case and those faced by the Court in Tembec II. In each case, (1) the ITC made an affirmative injury determination; (2) after an appeal to a NAFTA panel, the ITC made a negative injury determination; (3) liquidation of contested entries was suspended by request for administrative review; and (4) the AD/CVD orders were revoked. Therefore, the court will follow Tembec II and order that all of CWB’s entries, whose liquidation has been suspended, be liquidated in accordance with the ITC’s final negative determination. In assessing the parties’ arguments, and concluding that the plaintiffs should prevail, the Tembec II Court reasoned that the “continued” suspension of liquidation provided for in § 1516a(g)(5)(C) “acts as the equivalent of an injunction against liquidation and thus halts liquidation until" }, { "docid": "19784275", "title": "", "text": "law, insofar as the USTR did not have legal authority to order Commerce to “implement” the Section 129 Determination. A. The WTO Dispute Settlement System Although the legal question presented to the court for decision is narrow, the legal context necessary to understand that question is somewhat elaborate. For clarity’s sake, the court will provide a brief overview of AD and CVD duty orders, and the forms of review to which they are subject. Commerce and the ITC are authorized to conduct investigations and impose AD and CVD duties on imported goods under Title VII of the Tariff Act of 1930, as amended. See 19 U.S.C. §§ 1671, 1673 et seq. These laws, and the regulations implementing them, provide a series of standards to be applied in determining whether, and to what extent, AD and CVD orders may be imposed under U.S. law. Determinations under Title VII may be reviewed by the U.S. courts, or, if the goods in question are of Mexican or Canadian origin, by a NAFTA bina-tional panel. See 19 U.S.C. § 1516a(a)(2)(B), (g)(2). Additionally, by virtue of the United States’ membership in the WTO and its accession to the Anti-dumping and Subsidies agreements, the United States has agreed to certain international standards governing the imposition of AD and CVD orders. These obligations are separate from those imposed by U.S. law under Title VII. Thus, the same AD or CVD order may be subject to challenge under either set of obligations. Challenges to an AD or CVD order under the WTO agreements occur through international arbitration under the DSU. Challenges to an AD or CVD order as inconsistent with U.S. law may be brought before this Court, or, where the case involves Canada or Mexico, before a NAFTA binational panel. The bi-national panel sits in the place of a U.S. court, interpreting U.S. law according to U.S. standards of review. See NAFTA art.1904.2. Ordinarily, when this Court or a NAFTA panel finds that a given AD or CVD order is inconsistent with U.S. law, the court or NAFTA panel issues a ruling remanding the determination to Commerce" }, { "docid": "16197533", "title": "", "text": "be liquidated in accordance with the ITC’s negative injury determination. In Tembec II, the Court found that the general rule of 19 U.S.C. § 1516a(g)(5)(B) did not apply to pre-Timken notice entries when liquidation of those entries had been suspended. In that case, the court found that 19 U.S.C. § 1516a(g)(5)(C) controlled. See Tembec II, 30 CIT at -, 461 F.Supp.2d at 1367 (“Entries, the liquidation of which has been suspended, cannot, then, be liquidated with AD/CV duties under these conditions.... Rather, Congress provided for a suspension of liquidation to keep entries available for liquidation in accordance with law.”); see also Asociacion Colombiana de Exportadores de Flores v. United States, 916 F.2d 1571, 1577 (Fed.Cir.1990) (“The flaw in the government’s argument is that without a valid antidumping determination in the original order, there can be no valid determination in a later annual review.”). Thus, the Tembec II Court ordered Commerce to instruct Customs to liquidate all of plaintiffs’ subject entries, including those made prior to the Timken notice, without unfair trade duties. The court cannot discern a substantial difference between the facts presented in this case and those faced by the Court in Tembec II. Therefore, this Court’s decision in Tembec II indicates that plaintiff will likely succeed on the merits of its case and thus this part of the four-part test favors granting plaintiffs motion. II. Irreparable Harm The next part of the four-part test requires a movant to demonstrate that it will suffer irreparable harm in the absence of an injunction. Plaintiff asserts that it will be irreparably harmed if liquidation is not enjoined because “[i]f Customs is permitted to liquidate the CWB’s entries] at issue in this action prior to the completion of judicial review, the CWB may be denied its only remedy for Commerce’s failure to revoke the AD/CVD Orders and liquidate its entries] in accordance with law.” Pl.’s Mem. 10. In other words, plaintiff contends that if liquidation is not enjoined, Customs may liquidate its pre-January 2, 2006, entries with the unfair trade duties in place and the CWB will lose its opportunity to reclaim" }, { "docid": "14222680", "title": "", "text": "III standing must involve “an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural”); McKinney v. U.S. Dept. of Treasury, 799 F.2d 1544, 1550 (Fed. Cir. 1986) (“ ‘[Abstract,’ ‘conjectural,’ or ‘hypothetical’ injury is insufficient to meet the Article III requirement for injury.... Nor is an interest in a problem, no matter how longstanding the interest or how qualified the litigant in matters relating to the problem, sufficient to satisfy the injury requirement.”) (quotations and citations omitted). Thus, while the Governments of Canada have some interest in this case, they “[are] not entitled to special solicitude that would temper the injury-in-fact requirement.” See Canadian Lumber, 517 F.3d at 1338. Accordingly, the claims of the Governments of Canada are dismissed for lack of standing. II. Prospective Revocation of AD/CVD Orders Having established jurisdiction, the court turns to the merits of this action. CWB’s substantive case involves the question of whether the United States may lawfully retain cash deposits paid on its entries of HRS wheat even though the injury determination underlying the AD/CVD Order has been wholly invalidated. The parties agree that the resolution of this issue hinges on the interpretation and application of 19 U.S.C. §§ 1516a(g)(5)(B) and (C). Section 1516a(g) (5)(B) contains the general rule for the liquidation of pre-Timken Notice entries and provides: In the case of a determination for which binational panel review is requested pursuant to article 1904 of the NAFTA or of the Agreement, entries of merchandise covered by such determination shall be liquidated in accordance with the determination of the administering authority or the Commission, if they are entered, or withdrawn from warehouse, for consumption on or before the date of publication in the Federal Register by the administering authority of [the Timken] notice of a final decision of a binational panel, or of an extraordinary challenge committee, not in harmony with that determination. Such notice of a decision shall be published within 10 days of the date of the issuance of the panel or committee decision. 19 U.S.C. § 1516a(g)(5)(B). Section 1516a(g)(5)(C), however," }, { "docid": "14222689", "title": "", "text": "at _, 461 F.Supp.2d at 1364-65. Looking to caselaw at the time the statutes were enacted, the Tembec II panel explained that “[w]hen the subsections were drafted, there was no disagreement that if a periodic review were requested and an injunction granted, all unliquidated merchandise would be liquidated in accordance with the ultimate determination of: (1) the appeal of the periodic review; or (2) the appeal of the underlying AD duty order.” Id. at _, 461 F.Supp.2d at 1365 (footnote omitted). To illustrate this point, Tembec II cites Sonco Steel Tube Div., Ferrum, Inc. v. United States, 12 CIT 990, 993, 698 F. Supp. 927, 930 (1988) (“Apparently, there is agreement that where requested annual reviews have not been completed before a court decision finding an affirmative antidumping determination invalid there is no basis for liquidation with antidumping duties. Therefore, a court order totally invalidating an [agency’s] original determination, which order occurs in the midst of an annual review, will result in the suspended entries being liquidated with no antidumping duties, [even without an injunction and] even though they were entered prior to the court’s decision.”). See also Asociacion Colombiana de Exportadores de Flores v. United States, 916 F.2d 1571, 1577 (Fed. Cir. 1990) (“The flaw in the government’s argument is that without a valid antidumping determination in the original order, there can be no valid determination in a later annual review.”). Tembec II explained: Once the first periodic review of an AD/CVD order was completed, an appeal of the review determination to this Court would result in the entry of an injunction against liquidation. This injunction would protect unliquidated entries from premature liquidation and ensure the victor the fruits of its victory resulting from its appeals. Under the facts of this case, there can be little doubt that Congress intended that the suspension of liquidation found in § 1516a(g)(5)(C), which substituted for a court-ordered injunction, would serve to prevent premature liquidation of pre-Timken notice entries. While Defendants may characterize this as retroactive relief, it is the result that would have obtained upon the entry of a court-ordered injunction at" }, { "docid": "16197509", "title": "", "text": "Plaintiffs substantive challenge is to a legal conclusion contained in Commerce’s notice of revocation of the AD/CVD Orders, which was published following a negative injury determination of the United States International Trade Commission (“ITC” or the “Commission”). See HRS Wheat from Canada, Notice of Panel Decision, Revocation of Countervailing and An-tidumping Duty Orders and Termination of Suspension of Liquidation, 71 Fed.Reg. 8275 (Dep’t of Commerce Feb. 16, 2006) (notice) (“Notice of Revocation”). The ITC made its negative determination following remand from a binational panel assembled pursuant to article 1904 of the North American Free Trade Agreement (“NAFTA”). Specifically, plaintiff takes issue with Commerce’s statement in the Notice of Revocation that it would instruct Customs to liquidate, without duties, only those imports that “entered the United States on or after January 2, 2006.” Id. For plaintiff, Commerce committed legal error by not making the Notice of Revocation applicable to all entries, the liquidation of which had been suspended, made while the now invalid AD/CVD Orders were in place. Plaintiff claims that its position is supported by this Court’s decision in Tembec, Inc. v. United States, 30 CIT -, 461 F.Supp.2d 1355 (2006) (“Tembec II”), judgment vacated by Tembec, Inc. v. United States, 31 CIT-, 475 F.Supp.2d 1393 (2007) (“Tembec III”). See id. at -, 461 F.Supp.2d at 1367 (“Congress did not set up a system to retain duties that are not owed.”). The CWB asserts 28 U.S.C. § 1581(i)(4) (2000) as the jurisdictional basis for its suit. By its opposition to plaintiffs motion, the United States, on behalf of Commerce, argues that the Court lacks jurisdiction over this matter. See Def.’s Opp’n Pl.’s Mot. Prelim. Inj. 4-10 (“Def.’s Opp’n”). For the reasons that follow, the court finds that jurisdiction lies pursuant to 28 U.S.C. § 1581(i)(4). In addition, the court grants plaintiffs motion for a preliminary injunction. BACKGROUND The CWB is an exporter of Canadian HRS wheat. In September 2002, the domestic wheat industry petitioned both Commerce and the ITC seeking investigations into possible dumping and subsidization of Canadian HRS wheat, and the effects of Canadian wheat imports on the U.S." }, { "docid": "16197530", "title": "", "text": "that determination, the court finds that it has jurisdiction over plaintiffs claim pursuant to 28 U.S.C. § 1581(i)(4). C. Prospective Revocation of AD/CVD Orders As plaintiffs asserted basis of jurisdiction has been found to be valid, the court now addresses the likelihood that plaintiff will succeed on the substantive merits of its case. While the applicable standard for determining whether a mov-ant has satisfied the likelihood of success on the merits portion of the four-part test remains unsettled by the Federal Circuit, it is apparent that the court must, at minimum, weigh plaintiffs arguments in favor of its position against those raised in opposition by defendant. See U.S. Ass’n of Imps. of Textiles and Apparel, 413 F.3d at 1347 (“[T]he movant’s evidence and arguments must actually be weighed against those of the non-movant to determine whether the movant’s likelihood of success meets the applicable standard, whatever that standard may be.”) (citations & footnote omitted). The parties agree that plaintiffs case hinges on the interpretation and application of 19 U.S.C. § 1516a(g)(5)(B) and (C). Section 1516a(g)(5)(B) contains the general rule for the liquidation of pre-Timken notice entries and provides: In the case of a determination for which binational panel review is requested pursuant to article 1904 of the NAFTA or of the Agreement, entries of merchandise covered by such determination shall be liquidated in accordance with the determination of the administering authority or the Commission, if they are entered, or withdrawn from warehouse, for consumption, on or before the date of publication in the Federal Register by the administering authority of notice of a final decision of a binational panel, or of an extraordinary challenge committee, not in harmony with that determination. Such notice of a decision shall be published within 10 days of the date of the issuance of the panel or committee decision. 19 U.S.C. § 1516a(g)(5)(B). There is, however, an exception to the general rule in 19 U.S.C. § 1516a(g)(5)(C), which is entitled “Suspension of liquidation” and states: Notwithstanding the provisions of sub-paragraph (B), in the case of a determination described in clause (iii) [administrative review] or (vi)" }, { "docid": "14222690", "title": "", "text": "and] even though they were entered prior to the court’s decision.”). See also Asociacion Colombiana de Exportadores de Flores v. United States, 916 F.2d 1571, 1577 (Fed. Cir. 1990) (“The flaw in the government’s argument is that without a valid antidumping determination in the original order, there can be no valid determination in a later annual review.”). Tembec II explained: Once the first periodic review of an AD/CVD order was completed, an appeal of the review determination to this Court would result in the entry of an injunction against liquidation. This injunction would protect unliquidated entries from premature liquidation and ensure the victor the fruits of its victory resulting from its appeals. Under the facts of this case, there can be little doubt that Congress intended that the suspension of liquidation found in § 1516a(g)(5)(C), which substituted for a court-ordered injunction, would serve to prevent premature liquidation of pre-Timken notice entries. While Defendants may characterize this as retroactive relief, it is the result that would have obtained upon the entry of a court-ordered injunction at the time §§ 1516a(g)(5)(B) and (C) were enacted. It necessarily follows that Congress, having intended parallel remedies, intended that the suspension of liquidation provided for in § 1516a(g)(5)(C) would provide the same result following a NAFTA panel decision, as would an injunction issued by this Court. Tembec II, 30 CIT at _, 461 F.Supp.2d at 1365-66. Therefore, as the court expressly adopts the Tembec II panel’s analysis, it finds that Commerce is obligated to liquidate all of CWB’s pre-Timken Notice entries, whose liquidation has been suspended, without regard to duties. This result is demanded by both logic as well as the statute. That is, because the subject imports caused no injury during any time relevant to this inquiry, CWB should owe no duties. Indeed, while defendant claims that the pre-Timken Notice duty deposits may be kept by the United States, the Notice of Revocation appears to agree with the court. The notice reads: This revocation does not affect the liquidation of entries made prior to January 2, 2006. Any entries of subject merchandise entered before" } ]

[ { "docid": "19394497", "title": "", "text": "Hovenkamp, Antitrust Law ¶ 2046, p. 338 (3d ed. 2012) (hereinafter Areeda); Hovenkamp, Sensible Antitrust Rules for Pharmaceutical Competition, 39 U.S.F.L.Rev. 11, 24 (2004). We consequently describe four key features of the relevant drug-regulatory framework established by the Drug Price Competition and Patent Term Restoration Act of 1984, 98 Stat. 1585, as amended. That Act is commonly known as the Hatch-Waxman Act. First, a drug manufacturer, wishing to market a new prescription drug, must submit a New Drug Application to the federal Food and Drug Administration (FDA) and undergo a long, comprehensive, and costly testing process, after which, if successful, the manufacturer will receive marketing approval from the FDA. See 21 U.S.C. § 355(b)(1) (requiring, among other things, \"full reports of investigations\" into safety and effectiveness; \"a full list of the articles used as components\"; and a \"full description\" of how the drug is manufactured, processed, and packed). Second, once the FDA has approved a brand-name drug for marketing, a manufacturer of a generic drug can obtain similar marketing approval through use of abbreviated procedures. The Hatch-Waxman Act permits a generic manufacturer to file an Abbreviated New Drug Application specifying that the generic has the \"same active ingredients as,\" and is \"biologically equivalent\" to, the already-approved brand-name drug. Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 566 U.S. ----, ----, 132 S.Ct. 1670, 1676, 182 L.Ed.2d 678 (2012) (citing 21 U.S.C. §§ 355(j)(2)(A)(ii), (iv) ). In this way the generic manufacturer can obtain approval while avoiding the \"costly and time-consuming studies\" needed to obtain approval \"for a pioneer drug.\" See Eli Lilly & Co. v. Medtronic, Inc., 496 U.S. 661, 676, 110 S.Ct. 2683, 110 L.Ed.2d 605 (1990). The Hatch-Waxman process, by allowing the generic to piggy-back on the pioneer's approval efforts, \"speed[s] the introduction of low-cost generic drugs to market,\" Caraco, supra, at ----, 132 S.Ct., at 1676, thereby furthering drug competition. Third, the Hatch-Waxman Act sets forth special procedures for identifying, and resolving, related patent disputes. It requires the pioneer brand-name manufacturer to list in its New Drug Application the \"number and the expiration date\" of any relevant" } ]

[ { "docid": "12779868", "title": "", "text": "Pharm. Labs., Ltd. v. Novo Nordisk A/S, — U.S. -, 132 S.Ct. 1670, 1676, 182 L.Ed.2d 678 (2012). When a generic pharmaceutical manufacturer seeks to market a generic version of a brand-name drug, the approval process is considerably less burdensome. The Drug Price Competition and Patent Term Restoration (Hatch-Waxman) Act of 1984, 21 U.S.C. § 355, “was passed with the express purpose of expediting the entry of noninfringing generic competitors into pharmaceutical drug markets in order to decrease healthcare costs for consumers.” In re Nexium, 968 F.Supp.2d at 378. To launch a generic version of a brand-name drug, a pharmaceutical manufacturer is required to file an Abbreviated New Drug Application (“ANDA”) showing that the proposed generic product is suitably equivalent to the targeted brand drug. See 21 U.S.C. § 355(j)(2)(A)(ii)-(iv). The Hateh-Waxman Act encourages generic competition by rewarding the manufacturer that is first to file an ANDA for a brand drug. A first filer has the right, once final FDA approval is secured, to enter the generic market first and exclusively market its product for 180 days, during which time the FDA will not grant final approval to any other generic manufacturer’s version of the drug. See 21 U.S.C. § 355(j)(5)(B)(iv). The potential rewards of being a first filer are considerable. See Ralph B. Kalfayan & Vic A. Merjanian, Ensuring Access to Affordable Medication: The Supreme Court’s Opinion in F.T.C. v. Actavis, Inc., 22 Competition 120, 121 (2013) (“This 180-day exclusivity period provides a potentially powerful incentive to become the first manufacturer to file an ANDA — by some estimates, millions and perhaps billions in profits.”). Any manufacturer seeking ANDA approval, however, must “assure the FDA that its proposed generic product will not infringe” any patents related to the targeted brand drug. Novo Nordisk, 132 S.Ct. at 1676. This ostensibly is straightforward if there are no patents related to the targeted brand drug, or if those patents have or will be expired. See 21 U.S.C. § 355(j)(2)(A)(vii)(I-III). But the HatchWaxman Act also sets out a process by which a manufacturer can obtain approval to market the generic version of a" }, { "docid": "2238319", "title": "", "text": "for failure to plead facts sufficient to sustain a Sherman Act violation. These motions present difficult questions of antitrust law and its interaction with patent rights. Statutory and Regulatory Background The manufacture and distribution of pharmaceutical drugs in the United States is regulated by the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq. (the “Act”). Recognizing that the Act’s “cumbersome drug approval process delayed entry of relatively inexpensive generic drugs into the marketplace,” Mylan Pharms., Inc. v. Shalala, 81 F.Supp.2d 30, 32 (D.D.C.2000), Congress passed the “Hatch-Waxman Amendments” to the Act in 1984. See Drug Price Competition & Patent Term Restoration Act of 1984, Pub.L. No. 98^417 (codified as amended at 21 U.S.C. § 355). The impetus behind the Hatch-Waxman Amendments was “to make available more low cost generic drugs[.]” H.R.Rep. No. 98-857, pt. 1, at 14 (1984), reprinted in 1984 U.S.C.C.A.N 2647, 2647. In fact, the Hatch-Waxman Amendments embody Congress’ attempt to “balance two conflicting policy objectives: to induce name-brand pharmaceutical firms to make the investments necessary to research and develop new drug products, while simultaneously enabling competitors to bring cheaper, generic copies of those drugs to market.” Mylan, 81 F.Supp.2d at 32 (citations omitted). To this end, the Hatch-Waxman Amendments established new guidelines that simplify the approval process for generic drugs. Previously, any company wanting to market a new drug had to secure approval from the U.S. Food & Drug Administration (“FDA”) by filing a New Drug Application (“NDA”), a process often “time consuming and costly” because a NDA requires companies to submit specific data concerning the drug’s safety and effectiveness. Andrx Pharms., Inc. v. Biovail Corp. Int’l, 256 F.3d 799, 801 (D.C.Cir. 2001) (citations omitted), cert. denied 535 U.S. 931, 122 S.Ct. 1305, 152 L.Ed.2d 216 (2002). Under the new guidelines, a generic drug manufacturer can file an Abbreviated New Drug Application (“ANDA”) that incorporates by reference the safety and efficacy data developed and previously submitted by the company that manufactured the original, “pioneer” brand-name drug. To obtain FDA approval, the ANDA filer must demonstrate that its product is “bioequivalent” to the pioneer" }, { "docid": "13890077", "title": "", "text": "and whether such drug is effective in use” and “specimens of the labeling proposed to be used for such drug.” 21 U.S.C. § 355(b)(1). The FDA can refuse to approve the NDA if the manufacturer fails to provide “adequate tests” or there is “insufficient information” to ensure the new drug’s safety and effectiveness. 21 U.S.C. § 355(d). In contrast, generic manufacturers seeking to market a generic drug must submit an Abbreviated New Drug Application (“ANDA”) with the FDA. . 21 U.S.C. § 355(j). Congress codified the ANDA procedure with the passage of the Drug Price Competition and Patent Term Act (the Hatch-Waxman Amendments) in 1984. Fulgenzi v. PLIVA, Inc., 711 F.3d 578, 581 (6th Cir.2013). The ANDA procedure establishes an expedited FDA review process, “allow[ing] manufacturers to develop generic drugs inexpensively, without duplicating the clinical trials already performed on the equivalent brand-name drug.” Mensing, 564 U.S. at 612, 131 S.Ct. 2567. To receive FDA approval, the manufacturer must demonstrate that the generic drug it seeks to market is approved as a listed drug, meaning that the new drug product on which the generic drug is based already has FDA approval. 21 U.S.C. § 355(j)(2)(A)(i). The manufacturer must show that the generic drug has the same active ingredients arid is “bioequivalent” to the listed drug. 21 U.S.C. § 355(j)(2)(A)(ii)-(iv). Additionally, the manufacturer must supply “information to show that the labeling proposed for the [generic] drug is the same as the labeling approved for the listed drug ... except for changes required because of differences approved under a petition filed under subparagraph (C) or because the [generic] drug and the listed drug are produced or distributed by different manufacturers.” 21 U.S.C, § 355(j)(2)(A)(v). After the generic drug is approved, the generic manufacturer’s only continuing duty is one of “sameness”—that is, it must ensure that the warning label of the generic drug remains the same as the brand-name drug’s label. Mensing, 564 U.S. at 613, 131 S.Ct. 2567. Generic drug manufacturers are not permitted to independently change the labeling on their drugs. Id. at 614, 131 S.Ct. 2567. The duty of “sameness” also" }, { "docid": "21774920", "title": "", "text": ". . . under [two statutory subsections] on the ground that the patent does not claim ... an approved method of using the drug.” 117 Stat. 2452, 21 U.S.C. § 355(j)(5)(C)(ii)(I). We hold that a generic manufacturer may employ this provision to force correction of a use code that inaccurately describes the brand’s patent as covering a particular method of using the drug in question. I A The FDA regulates the manufacture, sale, and labeling of prescription drugs under a complex statutory scheme. To begin at the beginning: When a brand manufacturer wishes to market a novel drug, it must submit a new drug application (NDA) to the FDA for approval. The NDA must include, among other things, a statement of the drug’s components, scientific data showing that the drug is safe and effective, and proposed labeling describing the uses for which the drug may be marketed. See §§ 355(b)(1), (d). The FDA may approve a brand-name drug for multiple methods of use — either to treat different conditions or to treat the same condition in different ways. Once the FDA has approved a brand manufacturer’s drug, another company may seek permission to market a generic version pursuant to legislation known as the Hatch-Waxman Amendments. See Drug Price Competition and Patent Term Restoration Act of 1984, 98 Stat. 1585. Those amendments allow a generic competitor to file an abbreviated new drug application (ANDA) piggy-backing on the brand’s NDA. Rather than providing independent evidence of safety and efficacy, the typical ANDA shows that the generic drug has the same active ingredients as, and is biologically equivalent to, the brand-name drug. See §§ 355( j)(2)(A)(ii), (iv). As we have previously recognized, this process is designed to speed the introduction of low-cost generic drugs to market. See Eli Lilly & Co. v. Medtronic, Inc., 496 U. S. 661, 676 (1990). Because the FDA cannot authorize a generic drug that would infringe a patent, the timing of an ANDA’s approval depends on the scope and duration of the patents covering the brand-name drug. Those patents come in. different varieties. One type protects the drug" }, { "docid": "11861808", "title": "", "text": "necessary to understand the issues presented. A manufacturer that seeks to market a new brand-name drug must file a New Drug Application (“NDA”) with the FDA and “undergo a long, comprehensive, and costly testing process.” Actavis, 133 S.Ct. at 2228. Generic-drug manufacturers formerly underwent similarly rigorous processes to obtain FDA approval to market generic versions of the brand-name drug. Iri order to accelerate the entry of generic competitors into the market and decrease healthcare, costs, Congress enacted the Drug Price Competition and Patent Term Restoration Act of 1984 (“Hatch-Waxman Act”), Pub. L. No. 98-417, 98 Stat. 1585. The Hatch-Waxman Act has three regulatory components that are relevant here. First, the Act permits generic manufacturers to file the notably less costly Abbreviated New Drug Application (“ANDA”), “specifying that the generic has the ‘same active ingredients as,’ and is ‘biologically equivalent’ to, the already-approved brand-name drug.” Actavis, 133 S.Ct. at 2228 (quoting Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 132 S.Ct. 1670, 1676, 182 L.Ed.2d 678 (2012)). “[B]y allowing the generic to piggy-back on the pioneer’s approval efforts, [the Hatch-Waxman Act] ‘speedfs] the introduction of low-cost generic drugs to market,’ thereby furthering drug competition.” Id. (third alteration in original) (quoting Caraco, 132 S.Ct. at 1676). Second, the Act requires brand-name manufacturers to list the numbers and expiration dates of all relevant patents, in their NDAs, which are then published in the FDA’s “Orange Book,” an annual publication of all approved drugs and the reported patents or statutory exclusivities that cover those drugs. In turn, generic manufacturers filing ANDAs must “ ‘assure the FDA’ that the-generic ‘will not infringe’ the brand-name’s patents,” and may provide this assurance in one of four ways. Id. (quoting Caraco, 132 S.Ct. at 1676). The generic manufacturer may (1) certify that the brand-name manufacturer has failed to list any relevant patents; (2) certify that any relevant patents have expired; (3) request the FDA’s approval to market its generic upon the expiration of any still active patents covering the brand name; or' (4) certify that “any listed, relevant patent ‘is invalid or will not be" }, { "docid": "11861807", "title": "", "text": "number of causal mechanisms through which the plaintiffs could make their case to the jury. See In re Nexium (Esomeprazole) Antitrust Litig. (“In re Nexium [Summary Judgment]”), 42 F.Supp.3d 231 (D. Mass. 2014). This error at summary judgment pervaded the entire trial, the plaintiffs argue, and constitutes grounds to vacate the jury verdict and award a new trial. We find no reversible error in the district court’s evidentiary rulings, the formulation of the special verdict form and jury instructions, or its judgment as a matter of law on overarching conspiracy. In fact, many of the plaintiffs’ objections have been forfeited or mooted by the jury’s findings. We further hold that the jury verdict, finding an antitrust violation but not an antitrust injury, coupled with developments at trial on the issue of patent invalidity, renders harmless any error that may have occurred during the summary judgment proceedings. Accordingly, we need riot, and indeed should not, review the summary judgment order for error. We affirm. I. REGULATORY FRAMEWORK An overview of the intricate pharmaceutical regulatory framework is necessary to understand the issues presented. A manufacturer that seeks to market a new brand-name drug must file a New Drug Application (“NDA”) with the FDA and “undergo a long, comprehensive, and costly testing process.” Actavis, 133 S.Ct. at 2228. Generic-drug manufacturers formerly underwent similarly rigorous processes to obtain FDA approval to market generic versions of the brand-name drug. Iri order to accelerate the entry of generic competitors into the market and decrease healthcare, costs, Congress enacted the Drug Price Competition and Patent Term Restoration Act of 1984 (“Hatch-Waxman Act”), Pub. L. No. 98-417, 98 Stat. 1585. The Hatch-Waxman Act has three regulatory components that are relevant here. First, the Act permits generic manufacturers to file the notably less costly Abbreviated New Drug Application (“ANDA”), “specifying that the generic has the ‘same active ingredients as,’ and is ‘biologically equivalent’ to, the already-approved brand-name drug.” Actavis, 133 S.Ct. at 2228 (quoting Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 132 S.Ct. 1670, 1676, 182 L.Ed.2d 678 (2012)). “[B]y allowing the generic to piggy-back" }, { "docid": "1207805", "title": "", "text": "a generic manufacturer can obtain similar approval by submitting an Abbreviated New Drug Application (“ANDA”) that “shows that the generic drug has.the same active ingredients as, and is biologically equivalent to, the brand-name drug.” Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 405, 132 S.Ct. 1670, 182 L.Ed.2d 678 (2012) (citing 21 U.S.C. §§ 355(j)(2)(A)(ii), (iv)),. This way, a generic manufacturer does not need to undergo the same costly approval procedures to develop a drug that has already received FDA approval. Actavis, 133 S.Ct. at 2228 (“The Hatch-Wax-man process, by allowing the, generic to piggy-back on the pioneer’s approval efforts, ‘speed[s],the introduction of low-cost generic drugs , to market. Caraco, [566 U.S. at 405, 132 S.Ct. 1670], thereby furthering drug competition.” (first alteration in original)). Third, foreseeing the potential for conflict between brand-name and generic drug manufacturers, the Hatch-Waxman Act “sets forth special procedures for identifying, and resolving, related patent disputes.” Id. The Hatch-Waxman Act, as well as federal regulations, requires brand-name drug manufacturers to file information about'their patents with their NDA, Id. The brand-name manufacturer “is required to list any patents issued relating to the drug’s composition or methods of use.” Lipitor III, 855 F.3d at 135. That filing must include the patent number and expiration date of the patent. See Caraco, 566 U.S. at 405, 132 S.Ct. 1670 (quoting 21 U.S.C. § 355(b)(1)). Upon approval of the brand-name manufacturer’s NDA, the FDA publishes the submitted patent information in its “Orange Book,” more formally known as the Approved Drug Products with Therapeutic Equivalence Evaluations. Id. at 405-06, 132 S.Ct. 1670. Once a patent has been listed in the Orange Book, the generic manufacturer is free to file an ANDA if it can certify that its proposed generic drug will not actually violate the brand manufacturer’s patents. Id. at 405, 132 S.Ct. 1670; see also id. (The FDA “cannot authorize a generic drug that would infringe a patent.”). A generic manufacturer’s ANDA certification may, state: (I) that such patent information has not been filed, (II) that such patent has expired, (III) ... the date on which such" }, { "docid": "1207804", "title": "", "text": "encourage generic drug entry, into the marketplace. As we have noted previously, the Hatch-Waxman Act contains four key relevant features. See In re Lipitor Antitrust Litig., 855 F.3d 126, 135 (3d Cir. 2017) (Lipitor III), as amended (Apr. 19, 2017); King Drug Co. of Florence v. Smithkline Beecham Corp., 791 F.3d 388, 394 (3d Cir. 2015), cert. denied, — U.S. -, 137 S.Ct. 446, 196 L.Ed.2d 328 (2016). First, the Hatch-Waxman Act requires á drug manufacturer wishing to market a new brand-name drug to first submit a New Drug Application (“NDA”) to the Food and Drug Administration (“FDA”), see 21 U.S.C. § 355, and then undergo a long, complex, and costly testing process, see 21 U.S.C. § 355(b)(1). (requiring, among other things, “full reports of investigations” into safety and effectiveness; “a full list of the articles used as components”; and a “full description” of how the drug is manufactured, processed, and packed). If this process is successful, the FDA may grant the drug manufacturer approval to market the brand-name , drug. Second, after that approval, a generic manufacturer can obtain similar approval by submitting an Abbreviated New Drug Application (“ANDA”) that “shows that the generic drug has.the same active ingredients as, and is biologically equivalent to, the brand-name drug.” Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 405, 132 S.Ct. 1670, 182 L.Ed.2d 678 (2012) (citing 21 U.S.C. §§ 355(j)(2)(A)(ii), (iv)),. This way, a generic manufacturer does not need to undergo the same costly approval procedures to develop a drug that has already received FDA approval. Actavis, 133 S.Ct. at 2228 (“The Hatch-Wax-man process, by allowing the, generic to piggy-back on the pioneer’s approval efforts, ‘speed[s],the introduction of low-cost generic drugs , to market. Caraco, [566 U.S. at 405, 132 S.Ct. 1670], thereby furthering drug competition.” (first alteration in original)). Third, foreseeing the potential for conflict between brand-name and generic drug manufacturers, the Hatch-Waxman Act “sets forth special procedures for identifying, and resolving, related patent disputes.” Id. The Hatch-Waxman Act, as well as federal regulations, requires brand-name drug manufacturers to file information about'their patents with their NDA," }, { "docid": "12779867", "title": "", "text": "also Defs.’ Submission Supplemental Authority Relating Pis.’ Overarching Conspiracy Claims, ECF No. 955. The Plaintiffs’ response was filed on July 2, 2014. Direct Purchaser Class Pis.’ Response Defs.’ Submission Supp. Authority Relating Pis.’' Overarching Conspiracy Claims, ECF No. 960. B. Regulatory and Factual Background In addition to having a complicated procedural history, this case implicates a large and complex body of facts. Although some of this background has been laid out in the Court’s opinion dealing with the Defendants’ prior motions to dismiss, see In re Nexium, 968 F.Supp.2d at 376-78, further review of the regulatory and factual background is required here. Where appropriate, additional facts pertinent to the Court’s analysis will be set out within the relevant sections. 1. Regulatory Framework When a pharmaceutical manufacturer seeks to introduce a new brand-name prescription drug to the U.S. market, it must file a New Drug Application with the United States Food and Drug Administration (“FDA”) and undergo a long and expensive review process to gain agency approval. See Actavis, 133 S.Ct. at 2228; see also Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, — U.S. -, 132 S.Ct. 1670, 1676, 182 L.Ed.2d 678 (2012). When a generic pharmaceutical manufacturer seeks to market a generic version of a brand-name drug, the approval process is considerably less burdensome. The Drug Price Competition and Patent Term Restoration (Hatch-Waxman) Act of 1984, 21 U.S.C. § 355, “was passed with the express purpose of expediting the entry of noninfringing generic competitors into pharmaceutical drug markets in order to decrease healthcare costs for consumers.” In re Nexium, 968 F.Supp.2d at 378. To launch a generic version of a brand-name drug, a pharmaceutical manufacturer is required to file an Abbreviated New Drug Application (“ANDA”) showing that the proposed generic product is suitably equivalent to the targeted brand drug. See 21 U.S.C. § 355(j)(2)(A)(ii)-(iv). The Hateh-Waxman Act encourages generic competition by rewarding the manufacturer that is first to file an ANDA for a brand drug. A first filer has the right, once final FDA approval is secured, to enter the generic market first and exclusively market its product for" }, { "docid": "19394496", "title": "", "text": "Circuit stated that a reverse payment settlement agreement generally is \"immune from antitrust attack so long as its anticompetitive effects fall within the scope of the exclusionary potential of the patent.\" FTC v. Watson Pharmaceuticals, Inc ., 677 F.3d 1298, 1312 (2012). And since the alleged infringer's promise not to enter the patentee's market expired before the patent's term ended, the Circuit found the agreement legal and dismissed the FTC complaint. Id., at 1315. In our view, however, reverse payment settlements such as the agreement alleged in the complaint before us can sometimes violate the antitrust laws. We consequently hold that the Eleventh Circuit should have allowed the FTC's lawsuit to proceed. I A Apparently most if not all reverse payment settlement agreements arise in the context of pharmaceutical drug regulation, and specifically in the context of suits brought under statutory provisions allowing a generic drug manufacturer (seeking speedy marketing approval) to challenge the validity of a patent owned by an already-approved brand-name drug owner. See Brief for Petitioner 29; 12 P. Areeda & H. Hovenkamp, Antitrust Law ¶ 2046, p. 338 (3d ed. 2012) (hereinafter Areeda); Hovenkamp, Sensible Antitrust Rules for Pharmaceutical Competition, 39 U.S.F.L.Rev. 11, 24 (2004). We consequently describe four key features of the relevant drug-regulatory framework established by the Drug Price Competition and Patent Term Restoration Act of 1984, 98 Stat. 1585, as amended. That Act is commonly known as the Hatch-Waxman Act. First, a drug manufacturer, wishing to market a new prescription drug, must submit a New Drug Application to the federal Food and Drug Administration (FDA) and undergo a long, comprehensive, and costly testing process, after which, if successful, the manufacturer will receive marketing approval from the FDA. See 21 U.S.C. § 355(b)(1) (requiring, among other things, \"full reports of investigations\" into safety and effectiveness; \"a full list of the articles used as components\"; and a \"full description\" of how the drug is manufactured, processed, and packed). Second, once the FDA has approved a brand-name drug for marketing, a manufacturer of a generic drug can obtain similar marketing approval through use of abbreviated procedures." }, { "docid": "15415465", "title": "", "text": "GARLAND, Circuit Judge: In this case we consider the validity of a district court order, preliminarily enjoining approval by the Food and Drug Administration (“FDA”) of a generic drug, that was issued at the behest of the manufacturer of the competing brand-name drug. We previously stayed the preliminary injunction pending our resolution of this appeal. Because we find plaintiff has not satisfied the standards for a preliminary injunction, and in particular has not shown a likelihood of sue- cess on the merits, we now vacate the injunction. I The Food, Drug, and Cosmetic Act (the “Act”) provides that “[n]o person shall introduce or deliver for introduction into interstate commerce any new drug” without first obtaining FDA approval. 21 U.S.C. § 355(a). To obtain FDA approval, the first applicant to market a drug, known as the “pioneer,” must submit a new drug application (“NDA”) containing, among other things, “full reports of investigations” made “to show whether or not such drug is safe for use and whether such drug is effective in use.” Id. § 355(b)(1). Recognizing that the NDA process is costly and timeconsuming, and seeking “to make available more low cost generic drugs,” Congress amended the Act in 1984. H.R.Rep. No. 98-857, pt. 1, at 14 (1984), reprinted in 1984 U.S.C.C.A.N. 2647, 2647. The Drug Price Competition and Patent Term Restoration Act of 1984, Pub.L. No. 98-417, 98 Stat. 1585 (known as the “Hatch-Waxman Amendments”), permits a manufacturer of a generic alternative to a pioneer drug to seek FDA approval by submitting an abbreviated new drug application (“ANDA”) that need contain only the more limited information specified in 21 U.S.C. § 355(j)(2). Two aspects of the ANDA process, corresponding to two kinds of drug ingredients, are relevant to this case. First, with respect to “active ingredients,” the statute provides that the Secretary of Health and Human Services shall approve an application for a generic drug unless the Secretary finds, among other things, that “information submitted with the application is insufficient to show that the active ingredients are the same as the active ingredients of the listed [pioneer] drug....” 21 U.S.C." }, { "docid": "16035362", "title": "", "text": "generic equivalent upon expiration of the relevant patents. Accordingly, companies seeking to market generic drugs upon the expiration of patents that covered them were impeded by the cost of filing lengthy NDAs, which they could begin to prepare only upon the expiration of the brand-name drug company’s patents. The time it took generic companies to prepare the NDA and obtain FDA approval caused a de facto extension of the patent covering the brand-name drug. Recognizing the benefit in reducing delays in FDA approval of generic drugs, and as a means to eliminate the de facto extension of the end of a patent term, Congress enacted the Hatch-Waxman Act amendments to the FDCA. The Hatch Waxman Act conferred two main benefits upon generic drug manufacturers. First, it allowed them to avoid the costly NDA process by filing an Abbreviated New Drug Application (“ANDA”) which, in effect, “ ‘piggybacked]’ on the safety-and-effectiveness information that the brand-name manufacturers submitted in their NDAs.” Purepac Pharm. Co. v. Thompson, 354 F.3d 877, 879 (D.C.Cir.2004) (citing 21 U.S.C. § 355(j)(2)(A) and 21 C.F.R. § 314.94(a)(3)). Thus, among other things, an ANDA must show the proposed generic drug is chemically bioequivalent to a drug that was previously approved by the FDA. 21 U.S.C. § 365<j)(4)(F). ANDAs must also address patents that cover the drug for which approval is sought. 21 U.S.C. § 355(j)(2)(A)(vii) allows an applicant to satisfy this requirement by including in its ANDA one of several types of “certifications” explaining why the FDA should approve the application despite the patent’s claim on the drug. The certification at issue here is a “Paragraph TV Certification” (named for its statutory sub-paragraph), which states “that such patent is invalid or will not be infringed by the manufacture, use, or sale of the new drug.” Id. 355(j)(2)(A)(vii)(IV). Applicants use Paragraph IV Certifications to essentially challenge the validity of the brand-name drug manufacturers’ patents. An applicant that includes a Paragraph IV Certification in its ANDA must inform both the patent holder and the company that submitted the NDA on which the ANDA “piggybacks.” Id. § 355(j)(2)(B)(i). Once notice is served," }, { "docid": "1207803", "title": "", "text": "agreements” are subject to antitrust scrutiny. Id. at 2227. In both sets of consolidated appeals, plaintiffs allege that the companies holding the pharmaceutical patents and the generic manufacturers entered into such agreements. We are asked to decide whether those allegations are plausible. We conclude, as to both sets of appeals, that they are. Second, regarding only the Lipitor consolidated appeals, we address whether plaintiffs in those appeals pled plausible allegations of fraudulent patent procurement and enforcement, as well as other related misconduct. We again determine that those allegations are indeed plausible. Accordingly, we will reverse the District Court’s dismissal of the complaints in the Lipitor litigation, reverse its dismissal of the allegations in the Effe-xor litigation, and remand for further proceedings. I The 1984 Drug Price Competition and Patent Term Restoration Act (the “Hatch-Waxman Act”), 98 Stat. 1585, as amended,, provides a regulatory framework designed in part to, (1) ensure that only rigorously tested pharmaceutical drugs are marketed to the consuming public, (2) in-centivize drug manufactui'ers to. invest in new research and development, and (3) encourage generic drug entry, into the marketplace. As we have noted previously, the Hatch-Waxman Act contains four key relevant features. See In re Lipitor Antitrust Litig., 855 F.3d 126, 135 (3d Cir. 2017) (Lipitor III), as amended (Apr. 19, 2017); King Drug Co. of Florence v. Smithkline Beecham Corp., 791 F.3d 388, 394 (3d Cir. 2015), cert. denied, — U.S. -, 137 S.Ct. 446, 196 L.Ed.2d 328 (2016). First, the Hatch-Waxman Act requires á drug manufacturer wishing to market a new brand-name drug to first submit a New Drug Application (“NDA”) to the Food and Drug Administration (“FDA”), see 21 U.S.C. § 355, and then undergo a long, complex, and costly testing process, see 21 U.S.C. § 355(b)(1). (requiring, among other things, “full reports of investigations” into safety and effectiveness; “a full list of the articles used as components”; and a “full description” of how the drug is manufactured, processed, and packed). If this process is successful, the FDA may grant the drug manufacturer approval to market the brand-name , drug. Second, after that approval," }, { "docid": "147995", "title": "", "text": "Supplemental Mem. Supp. Their Mot. Dismiss Indirect Purchasers’ Consol. Am. Compl. (Dkt. No. 114) Pursuant Fed. Rule Civil Procedure 12(b)(6) (“Defs.’ Supplemental Mem.”), ECF No. 223; End-Payor Class Pis.’ Supplemental Mem. Opp’n Defs.’ Mot. Dismiss (“End-Payors’ Supplemental Mem.”), ECF No. 224. B. Regulatory and Transactional Background 1. Hatch-Waxman Regime Before a drug manufacturer may market a new drug to the public, it must first seek the approval of the United States Food and Drug Administration (“FDA”) by filing a New Drug Application (“NDA”) with the agency. Actavis, 133 S.Ct. at 2228. The road to NDA approval is long and fraught with expense, as the process requires applicants to submit, inter alia, a description of the proposed drug’s components and composition; reports on the safety and effectiveness of the drug; and an explanation of how the drug will be manufactured, processed, and packaged. See 21 U.S.C. § 355(b)(1). Drugs that have been approved by the FDA are then listed in a publication known colloquially as the “Orange Book.” See Approved Drug Products with Therapeutic Equivalence Evaluations (Orange Book), U.S. Food & Drug Admin., http://www.fda.gov/Drugs/ InformationOnDrugs/ucml29662.htm (last updated Aug. 23, 2013). The Drug Price Competition and Patent Term Restoration Act of 1984, Pub.L. No. 98-417, 98 Stat. 1585 (codified as amended at 15, 21, 28, and 35 U.S.C.)— known more commonly by its popular title, the “Hatch-Waxman Act,” derived from the surnames of the Act’s principal sponsors — was passed with the express purpose of expediting the entry of noninfringing generic competitors into pharmaceutical drug markets in order to decrease healthcare costs for consumers. See PLI-VA, Inc. v. Mensing, — U.S. —, 131 S.Ct. 2567, 2574, 180 L.Ed.2d 580 (2011). Under the Hatch-Waxman Act, generic drug manufacturers wishing to market a generic version of a brand-name drug need not undertake the extensive and expensive NDA process; instead, they may file an Abbreviated New Drug Application (“ANDA”). Actavis, 133 S.Ct. at 2228. An ANDA must show that the generic drug contains the same active ingredients, route of administration, dosage form, and strength as the brand-name drug, as well as demonstrate that the generic" }, { "docid": "12746503", "title": "", "text": "Plaintiffs and End-Payor Plaintiffs’ Consolidated Amended Complaints (“Motion to Dismiss”) and defendants’ Joint Motion for Judicial Notice in Support of Joint Motion to Dismiss the Consolidated Amended Complaints (“Motion for Judicial Notice”), on which the Court heard oral argument on June 24, 2014. For the reasons set forth below, defendants’ Motion to Dismiss is granted in part and denied in part, and defendants’ Motion for Judicial Notice is denied. II. BACKGROUND A. Regulatory Background Prior to marketing or selling a new drug (i.e., a “pioneer drug” or “brand-name drug”) in the United States, a potential drug manufacturer must obtain a grant of approval from the Food & Drug Administration (“FDA”). To do so, an applicant must file a New Drug Application (“NDA”), which contains, inter alia, information about safety and efficacy of the drug, the components of the drug, and any patents issued on the composition of the drug or methods for its use. 21 U.S.C. § 355(b)(1). Upon approval of an NDA, the FDA publishes the drug and patent information in its directory of Approved Drug Products with Therapeutic Equivalence Evaluations, commonly known as the “Orange Book.” Apotex Inc. v. UCB, Inc., 763 F.3d 1354, 1356-57, 2014 WL 3973498, at *2 (Fed.Cir.2014). In an effort to speed up the approval process for generic versions of already FDA-approved brand-name drugs, Congress passed the Hatch-Waxman Act (“Hatch-Waxman”) in 1984. See Pub.L. No. 98-417, 98 Stat. 1585 (1984). Under Hatch-Waxman, a potential generic manufacturer only needs to file an Abbreviated New Drug Application (“ANDA”) if it can establish that its generic is the bioequivalent of an FDA-approved brand-name drug. See 21 U.S.C. § 355(j)(2)(A). The process for filing an ANDA is considerably more streamlined than that for an NDA because it allows the applicant to “piggyback” on the safety and efficacy findings made by the FDA in the course of approving the brand-name drug, rather forcing the applicant to conduct the time-consuming and costly trials anew. Teva Pharm., USA, Inc. v. Leavitt, 548 F.3d 103, 104 (D.C.Cir.2008). An ANDA applicant must, inter alia, make one of four “paragraph certifications”: (1) no patent" }, { "docid": "147996", "title": "", "text": "(Orange Book), U.S. Food & Drug Admin., http://www.fda.gov/Drugs/ InformationOnDrugs/ucml29662.htm (last updated Aug. 23, 2013). The Drug Price Competition and Patent Term Restoration Act of 1984, Pub.L. No. 98-417, 98 Stat. 1585 (codified as amended at 15, 21, 28, and 35 U.S.C.)— known more commonly by its popular title, the “Hatch-Waxman Act,” derived from the surnames of the Act’s principal sponsors — was passed with the express purpose of expediting the entry of noninfringing generic competitors into pharmaceutical drug markets in order to decrease healthcare costs for consumers. See PLI-VA, Inc. v. Mensing, — U.S. —, 131 S.Ct. 2567, 2574, 180 L.Ed.2d 580 (2011). Under the Hatch-Waxman Act, generic drug manufacturers wishing to market a generic version of a brand-name drug need not undertake the extensive and expensive NDA process; instead, they may file an Abbreviated New Drug Application (“ANDA”). Actavis, 133 S.Ct. at 2228. An ANDA must show that the generic drug contains the same active ingredients, route of administration, dosage form, and strength as the brand-name drug, as well as demonstrate that the generic and brand-name drugs are bioequivalent. See 21 U.S.C. § 355(3X2)(A)(ii)-(iv). In addition, an ANDA must contain one of four certifications: (1) that no patent for the brand-name drug has been filed, (2) that the patent for the brand-name drug has expired, (3) that the generic manufacturer will not seek to market its drug before the expiration of the patent for the brand-name drug, or (4) that the patent for the brand-name drug is invalid or will not be infringed by the proposed generic alternative. Id. § 355(j)(2)(A)(vii). Choosing the last of these options, referred to as a “paragraph IV” certification, “automatically counts as patent infringement, and often means provoking litigation.” Actavis, 133 S.Ct. at 2228 (citation omitted) (quoting Caraco Pharm. Labs., Ltd. v. Novo Nordisk AJS, — U.S. —, 132 S.Ct. 1670, 1677, 182 L.Ed.2d 678 (2012)) (internal quotation marks omitted) (citing 35 U.S.C. § 271(e)(2)(A)). To encourage generic manufacturers to bring their drugs to market and assume the potential risk of defending against a patent infringement action, the HatchWaxman Act grants 180 days of" }, { "docid": "1649215", "title": "", "text": "had not been shown that future proceedings would not be manageable consistent with defendants’ Seventh Amendment and due process rights. I. A. Both the Supreme Court in FTC v. Actavis, — U.S. -, 133 S.Ct. 2223, 2227- 29, 186 L.Ed.2d 343 (2013), and the district court below, In re Nexium (Esomeprazole) Antitrust Litigation, 968 F.Supp.2d 367 (D.Mass.2013), have discussed extensively the regulatory and patent framework of this suit. We discuss it briefly here. The Food, Drug, and Cosmetic Act (“FDCA”) requires drug manufacturers to secure approval from the Food and Drug Administration (“FDA”) to market a new drug. 21 U.S.C. § 355(b)(1), (d). To obtain approval, a new drug application (“NDA”) must include scientific data showing that the drug is safe and effective for its proposed purpose, requiring that the manufacturer conduct long and costly clinical trials. Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, — U.S. -, 132 S.Ct. 1670, 1676, 182 L.Ed.2d 678 (2012). The Hatch-Waxman Amendments introduced two mechanisms to the FDCA to enable early marketing of generic substitutes. First, to market a generic drug, the manufacturer need only file an abbreviated new drug application (“ANDA”) showing that the generic product has the same active ingredients as, and is biologically equivalent to, the brand name drug. Id. Second, Hatch-Waxman protects the original NDA-filer by barring FDA approval of an ANDA that is alleged to infringe a patent until the patent cases have been resolved (or 30 months have elapsed) and provides a means for early resolution of patent disputes. Eli Lilly & Co. v. Medtronic, Inc., 496 U.S. 661, 676-78, 110 S.Ct. 2683, 110 L.Ed.2d 605 (1990). To this end, the NDA-filer must list the number and expiration date of any patent which claims the drug that is the subject of the NDA or a method of manufacture or use of that drug in the’ FDA’s so-called “Orange Book.” 21 C.F.R. § 314.53. Upon filing, the ANDA applicant must notify the NDA-filer if it is asserting that some or all of these listed (and unexpired) patents are “invalid or will not be infringed by the manufacture, use" }, { "docid": "20617579", "title": "", "text": "the first procedure, a new drug (or “brand name” drug) applicant files a New Drug Application (“NDA”), which must include examples of the proposed labeling for the drug and clinical data demonstrating the drug’s safety and efficacy. The NDA must also include the patent number and expiration date of any patent that claims either the drug or a method of using the drug if “a claim of patent infringement could reasonably be asserted.” Submission of an NDA involved “a long, comprehensive, and costly testing process.” Actavis, 133 S.Ct. at 2228. The FDA publishes the names of approved drugs and their associated patents in what is commonly known as the “Orange Book.” 21 U.S.C. § 355(a),(b). Congress established the second new drug approval procedure in 1984 with the Drug Price Competition and Patent Term Restoration Act (the “Hatch-Waxman Act”). Pub.L. No. 98-417, 98 Stat. 1585 (1984). The Hatch-Waxman Act allows companies seeking to manufacture and market a generic version of a previously approved pioneer drug (known as the “listed drug”) to avoid filing an NDA. Instead, generic manufacturers are permitted to file an Abbreviated New Drug Application (“ANDA”). The ANDA permits the applicant to rely on the safety and efficacy data for the listed drug if the applicant can show that the generic product is “bioequi-valent” to the listed drug. 21 U.S.C. §§ 355(j)(2)(A)(iv), Cj)(8)(B). As part of the ANDA process, a generic manufacturer must make one of four certifications regarding each patent associated in the Orange Book with the listed drug: (I) that the patent information has not been filed; (II) that the patent has expired; (III) that the patent is set to expire; or (IV) that the patent is invalid or will not be infringed by the generic drug. This fourth certification is known as a “Paragraph IV Certification.” 21 U.S.C, § 355(j)(2)(A)(vii)(IV). A generic manufacturer that files a Paragraph IV Certification must give notice to the patent holder and provide a “detailed statement of the factual and legal basis of the opinion of the applicant that the patent is invalid or will not be infringed.” 21 U.S.C. §" }, { "docid": "16035361", "title": "", "text": "OPINION CHESLER, District Judge. I. INTRODUCTION In this Hatch-Waxman Act patent infringement case, defendant Teva Pharmaceuticals USA, Inc. (“Teva”) moves pursuant to Federal Rule of Civil Procedure 12(c) for judgement on the pleadings with respect to plaintiffs Celgene Corporation, Novartis Pharmaceuticals Corporation, and Novartis Pharma AG’s (collectively “plaintiffs”) allegation of willful infringement. For the reasons that follow, Teva’s motion is GRANTED. II. BACKGROUND A. The Hatch-Waxman Act The Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-99, (“FDCA”) provides that a company seeking to market a new brand-name drug must submit a New Drug Application (“NDA”). See id. § 355(b)(1). NDAs are generally lengthy applications that include information about the drug such as evidence of its safety and effectiveness, and information about the patents that cover or might cover it. Id. Before Congress passed the Hatch-Waxman Act, a generic drug manufacturer’s use of a patented drug was considered patent infringement. This was so even if such use of the patented drug was limited to testing for Food and Drug Administration (“FDA”) approval to market its generic equivalent upon expiration of the relevant patents. Accordingly, companies seeking to market generic drugs upon the expiration of patents that covered them were impeded by the cost of filing lengthy NDAs, which they could begin to prepare only upon the expiration of the brand-name drug company’s patents. The time it took generic companies to prepare the NDA and obtain FDA approval caused a de facto extension of the patent covering the brand-name drug. Recognizing the benefit in reducing delays in FDA approval of generic drugs, and as a means to eliminate the de facto extension of the end of a patent term, Congress enacted the Hatch-Waxman Act amendments to the FDCA. The Hatch Waxman Act conferred two main benefits upon generic drug manufacturers. First, it allowed them to avoid the costly NDA process by filing an Abbreviated New Drug Application (“ANDA”) which, in effect, “ ‘piggybacked]’ on the safety-and-effectiveness information that the brand-name manufacturers submitted in their NDAs.” Purepac Pharm. Co. v. Thompson, 354 F.3d 877, 879 (D.C.Cir.2004) (citing 21 U.S.C. § 355(j)(2)(A) and" }, { "docid": "13890076", "title": "", "text": "federal preemption argument on conflict preemption. (Docket No, 9-1 at 6.) Bidco argues that under federal law, manufacturers of generic drugs cannot unilaterally alter their labeling and formulas and, therefore, state laws that impose heightened warning or design standards on generic drug manufacturers are in direct conflict with federal law. Id. The Court must first address the federal law governing the production of generic drugs before addressing Ms. Mitchell’s claims for failure-to-warn and design defect, respectively. I. Federal Regulation of Generic Drugs Thé Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq., charges the Food and Drug Administration (“FDA”) with the responsibility of approving the introduction of new drugs on the market. See 21 U.S.C. § 355. A brand-name manufacturer seeking to market a new drug must submit a New Drug Application (“NDA”) with the FDA. 21 U.S.C. § 355(b). The NDA requires, among other things, that the manufacturer supply the agency with “full reports of investigations which have been made to show whether or not such drug is safe for use and whether such drug is effective in use” and “specimens of the labeling proposed to be used for such drug.” 21 U.S.C. § 355(b)(1). The FDA can refuse to approve the NDA if the manufacturer fails to provide “adequate tests” or there is “insufficient information” to ensure the new drug’s safety and effectiveness. 21 U.S.C. § 355(d). In contrast, generic manufacturers seeking to market a generic drug must submit an Abbreviated New Drug Application (“ANDA”) with the FDA. . 21 U.S.C. § 355(j). Congress codified the ANDA procedure with the passage of the Drug Price Competition and Patent Term Act (the Hatch-Waxman Amendments) in 1984. Fulgenzi v. PLIVA, Inc., 711 F.3d 578, 581 (6th Cir.2013). The ANDA procedure establishes an expedited FDA review process, “allow[ing] manufacturers to develop generic drugs inexpensively, without duplicating the clinical trials already performed on the equivalent brand-name drug.” Mensing, 564 U.S. at 612, 131 S.Ct. 2567. To receive FDA approval, the manufacturer must demonstrate that the generic drug it seeks to market is approved as a listed drug, meaning that" } ]

[ { "docid": "21451661", "title": "", "text": "of Pittsburgh, 725 F.2d 910, 915 (3d Cir.1983), cert. denied, 469 U.S. 892, 105 S.Ct. 266, 83 L.Ed.2d 202 (1984), and a jury verdict on the issue of liability on a disparate treatment claim under § 1981 is normally conclusive on the issue of liability in a parallel action under Title VII. See, e.g., King v. Alco Controls Div. of Emerson Elec. Co., 746 F.2d 1331, 1332 n. 2 (8th Cir.1984); Whatley v. Skaggs Companies, Inc., 707 F.2d 1129, 1139 (10th Cir.), cert. denied, 464 U.S. 938, 104 S.Ct. 349, 78 L.Ed.2d 314 (1983). Consequently, the only issue left for decision by the district court after a jury finding of liability and damages awards under § 1981 would be the issue of the plaintiff’s entitlement to reinstatement and attorneys’ fees under Title VII. Muldrew v. Anheuser-Busch, Inc., 554 F.Supp. 808, 810-11 (E.D.Mo.1982), aff'd, 728 F.2d 989 (8th Cir.1984); see also, Banerjee v. Board of Trustees of Smith College, 495 F.Supp. 1148, 1156 (D.Mass.1980), aff'd 648 F.2d 61 (1st Cir.), cert. denied 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981) (treating § 1981 and Title VII as coextensive, the primary difference only in the scope of relief available under each statute). The parties agree that the jury verdict for $3,945.48 represented the amount of backpay which the jury determined Mr. Skinner was entitled under § 1981. Mr. Skinner then moved to have the jury verdict set aside, on the grounds that the amount of the backpay award was unreasonably low and the result of jury compromise. The court denied this motion, yet thereafter awarded Mr. Skinner over $40,-000.00 as compensation for backpay and lost benefits under Title VII. Such action by the court was in violation of the Seventh Amendment: either the court should have granted the motion for new trial if it concluded that the damage award was, in fact, too low, or it should have treated the jury’s award of backpay under § 1981 as determinative of both claims. Moreover, the district court’s award of backpay under Title VII was improper in that it amounted to a" } ]

[ { "docid": "1701886", "title": "", "text": "Hadra v. Herman Blum Consulting Eng’rs, 632 F.2d 1242, 1245-46 (5th Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981). Besides inadequate damages, there must be other indicia of compromise, such as difficulty in jury deliberations or close questions of liability. Compare Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1445-46 (10th Cir.1988) (jury compromise indicated by. inadequate damages, close questions of liability and difficult deliberations) and Mekdeci v. Merrell Nat’l Labs., 711 F.2d 1510, 1514-15 (11th Cir.1983) (same) with Phav v. Trueblood, Inc., 915 F.2d 764, 768-69 (1st Cir.1990) (affirming grant of partial new trial where only indication of juror compromise was inadequate damages award) and Burger King Corp. v. Mason, 710 F.2d 1480, 1487-88 (11th Cir.1983) (same), cert. denied, 465 U.S. 1102, 104 S.Ct. 1599, 80 L.Ed.2d 130 (1984). In this case, as in the Phav and Burger King cases, supra, there were no indicia of a jury compromise other than the low damages award. The jury deliberated only one day, without incident, and the issue of the defendants’ liability for breach of contract was reasonably clear. Accordingly, Judge Gagliardi’s grant of a partial new trial was well within his discretion. II. Attorney’s Fees A.- Fee Award for Defending Counterclaims The franchise agreement, which both parties agree is governed by New York law, contained a fee-shifting clause that is hardly a paragon of clarity: In the event FRANCHISOR is required to employ legal counsel or to incur other expense to enforce any obligation of FRANCHISEE hereunder, or to defend against any claim, demand, action, or proceeding by reason of FRANCHISEE'S failure to perform any obligation imposed upon FRANCHISEE by this Agreement, and provided that legal action is filed by or against FRANCHISOR and such action or the settlement thereof establishes FRANCHISEE’S default hereunder, then FRANCHISOR shall be entitled to’ recover from FRANCHISEE the amount of all reasonable attorney’s fees of such counsel and all other expenses incurred in enforcing such obligation dr in defending against such claim, demand, action, or proceeding, whether incurred prior to or in preparation for or contemplation of the filing" }, { "docid": "12503601", "title": "", "text": "but zero damages awarded for pain and suffering). Accordingly, because the jury verdict is incapable of being harmonized rationally, a new trial must be ordered. E.g., Auwood, 850 F.2d at 891. Having determined that this case must be remanded for a new trial, we next consider whether the new trial must encompass all issues, or may be limited only to damages. See Fed.R.Civ.P. 59(a). Appellant contends that a retrial should be confined solely to damages because the jury found negligence and causation in its answers to the special interrogatories. See, e.g., Crane v. Consolidated Rail Corp., 731 F.2d 1042, 1050 (2d Cir.) (where elements of a claim are determined separately in special interrogatories, “error with respect to one issue will ordinarily not constitute reason to retry an issue that was separately determined”) (emphasis added), cert. denied, 469 U.S. 854, 105 S.Ct. 179, 83 L.Ed.2d 114 (1984). We believe, however, that under the circumstances of this case, the new trial must address both liability and damages. “It is well established that a partial new trial ‘may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice.’ ” Bohack Corp. v. Iowa Beef Processors, Inc., 715 F.2d 703, 709 (2d Cir.1983) (quoting Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931)). Thus, a partial retrial on damages alone is not warranted where “the question of damages ... is so interwoven with that of liability that the former cannot be submitted to the jury independently of the latter without confusion and uncertainty, which would amount to a denial of a fair trial.” Gasoline Products, 283 U.S. at 500, 51 S.Ct. at 515; see also Northeastern Tel. Co. v. American Tel. & Tel. Co., 651 F.2d 76, 95 (2d Cir.1981) (vacating judgment made on special interrogatories in a Sherman Act case and remanding for a new trial on liability and damages because two issues were interwoven), cert. denied, 455 U.S." }, { "docid": "12060911", "title": "", "text": "of 1987; plaintiff testified he did not recall that job. Trueblood also introduced evidence showing that in two jobs Phav had held after his accident he made more per hour than he had at Cable Systems. The district court found that the jury’s damage award of $5,000 was a “parsimonious award outside the universe of possible awards once the jury had found sufficient evidence to support liability.” Although a trial judge “should not act merely as a ‘13th juror,’ ” Borras v. Sea-Land Service, Inc., 586 F.2d 881, 887 (1st Cir.1978), we must keep in mind that he or she “has had the benefit of hearing the evidence and observing the demeanor of the witnesses.” Clark v. Taylor, 710 F.2d 4, 13 (1st Cir.1983). Based on our review of the record, we hold that the court did not abuse its discretion in finding that the award was inadequate. We turn now to defendant’s claim that if a new trial was in order, it should have been on all of the issues because the damages award, compensating plaintiff only for his medical expenses, was the result of a compromise on liability. II. Rule 59(a) of the Federal Rules of Civil Procedure provides that a new trial may be granted “on all or part of the issues.” Where a verdict is set aside because of an inadequate damages award, retrial of all the issues is required “if the verdict ‘could only have been a sympathy or compromise verdict.’ ” Spell v. McDaniel, 824 F.2d 1380, 1400 (4th Cir.1987), cert. denied, 484 U.S. 1027, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988) (quoting Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 511 F.2d 839, 846 (4th Cir.1975), cert. denied, 425 U.S. 975, 96 S.Ct. 2176, 48 L.Ed.2d 799 (1976)). “ ‘[B]ut where there is no substantial indication that the liability and damages issues are inextricably interwoven ... a second trial limited to damages is entirely proper.’ ” Id. See also Mekdeci, 711 F.2d at 1513 (11th Cir.1983) (retrial limited to damages not appropriate where there are indications jury may have rendered compromise verdict);" }, { "docid": "10946608", "title": "", "text": "for the finding of a compromise verdict. In most of the cases cited by counsel where a compromise was found, there have been close questions as to liability with strong affirmative defenses which have been resolved against an “unsympathetic” defendant and in favor of a “sympathetic” plaintiff. See, e.g., Schuerholz v. Roach, 58 F.2d 32 (4th Cir.1932). In this action, plaintiff is a five time convicted drug felon and trafficker. Defendant McDaniel is a young police officer and the remaining individual defendants were McDaniel’s supervisors. Evidence of possible sympathy for McDaniel is found in the jury’s question to the court as to whether they were to disregard “the problem within the police department” in determining McDaniel’s liability. It is plausible to suggest that some jurors were concerned about whether McDaniel should be held accountable for doing what he had been taught and encouraged to do by the supervisory defendants. Furthermore, it is not unlikely that some jurors were concerned with assessing damages against the municipal defendant knowing or suspecting that the cost would be passed on to innocent taxpayers. In summary, this case is not one where the jury, manifestly, awarded plaintiff a small verdict out of sympathy for his suffering and without regard to the question of real liability. Southern Railway Co. v. Madden, 224 F.2d at 321, See also Young v. International Paper Co., 322 F.2d 820, 823 (4th Cir.1963). Having reviewed the above factors and found that none of them indicate a verdict “which could only have been a sympathy or compromise verdict,” the court turns to defendants’ argument that the award of minimal damages is by itself, sufficient to prove a compromise. This assertion is simply not supported by the law. A nominal or inadequate finding of damages by itself does not automatically mandate the conclusion that the award was the product of a compromise verdict. Burger King Corp. v. Mason, 710 F.2d at 1487; Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242, 1246 (5th Cir.1980), cert. denied 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981). Indeed, if inadequate damages were the sole" }, { "docid": "23126678", "title": "", "text": "may be had without injustice. Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188, 1191 (1931); see also Lucas, 630 F.2d at 294. In accordance with that mandate, this court has required a complete new trial “when the issues of liability and damages were tried together and there are indications that the jury may have rendered a compromise verdict.” Lucas, 630 F.2d at 294; see also Hatfield v. Seaboard Air Line Railroad Co., 396 F.2d 721, 724 (5th Cir. 1968); see generally J. Moore, 6A Moore’s Federal Practice ¶ 59.06 (2d ed. 1979). A compromise verdict results when jurors resolve their inability to make a determination with any certainty or unanimity on the issue of liability by finding inadequate damages. See Freight Terminals, Inc. v. Ryder System, Inc., 461 F.2d 1046, 1053 (5th Cir.1972). However, an insufficient damages verdict, standing alone, does not necessarily indicate a compromise. See, e.g., Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242, 1246 (5th Cir. 1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981). Parker v. Wideman, 380 F.2d 433, 437 (5th Cir.1967). Ordinarily there must be other evidence demonstrating that the deficient monetary award resulted from an impermissible compromise. Compare Lucas, 630 F.2d at 293-94, and Hatfield, 396 F.2d at 723-24, with Hadra, 632 F.2d at 1246. If sufficiently persuasive indicia of a compromise are present, then the issues of liability and damages are inseparable and a complete new trial is necessary. See Lucas, 630 F.2d at 293-94; Hatfield, 396 F.2d at 723-24. For example, in Lucas, the court reviewed a jury verdict finding the defendant liable, but awarding the plaintiff damages less than the minimum amount stipulated by the defendant. 630 F.2d at 292. Because of an approaching hurricane, the district court admonished the jury either to finish their deliberations within a brief period of time or to return on a later date. Id. at 293. In the view of the appellate court, the risk that this coercion produced the inadequate relief necessitated a new trial. Id. at 293-94." }, { "docid": "22819967", "title": "", "text": "damages signifies an improper compromise verdict because there was no dispute as to the correct amount due on the notes and accounts. Mason therefore claims that the liability and damages issues were inseparable and the trial judge erred in restricting a new trial to the question of damages. Rule 59(a) of the Federal Rules of Civil Procedure provides that a new trial may be granted “on all or part of the issues.” The decision whether to grant a new trial is discretionary with the district court and will not be reversed absent an abuse of that discretion. See, e.g., Franks v. Associated Air Center, Inc., 663 F.2d 583, 586 (5th Cir.1981); Lucas v. American Manufacturing Co., 630 F.2d 291 (5th Cir.1980); Young v. International Paper Co., 322 F.2d 820, 822 (4th Cir.1963). It is axiomatic, however, that a partial new trial may not be granted if it would infringe upon a litigant’s seventh amendment right to a jury trial. In Gasoline Products v. Champlin Refining Co., 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188 (1930), the Supreme Court enunciated the standard which governs partial new trial practice: [w]here the practice permits a partial new trial, it may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice. Id. at 500, 51 S.Ct. at 515, 75 L.Ed. at 1191. Applying Champlin Refining, the former Fifth Circuit Court of Appeals held that a jury verdict influenced by an improper compromise cannot stand and a complete new trial is required because liability and damages are inseparable. See, e.g., Lucas v. American Manufacturing Co., 630 F.2d 291, 294 (5th Cir.1980); Hatfield v. Seaboard Air Line R.R. Co., 396 F.2d 721, 724 (5th Cir.1968). Hence, if there is a compromised finding on liability, a separate trial on damages alone will not suffice — both liability and damages must be relitigated in a new trial. Id. With this admonition in mind, we focus our attention on whether the district court abused" }, { "docid": "10946609", "title": "", "text": "on to innocent taxpayers. In summary, this case is not one where the jury, manifestly, awarded plaintiff a small verdict out of sympathy for his suffering and without regard to the question of real liability. Southern Railway Co. v. Madden, 224 F.2d at 321, See also Young v. International Paper Co., 322 F.2d 820, 823 (4th Cir.1963). Having reviewed the above factors and found that none of them indicate a verdict “which could only have been a sympathy or compromise verdict,” the court turns to defendants’ argument that the award of minimal damages is by itself, sufficient to prove a compromise. This assertion is simply not supported by the law. A nominal or inadequate finding of damages by itself does not automatically mandate the conclusion that the award was the product of a compromise verdict. Burger King Corp. v. Mason, 710 F.2d at 1487; Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242, 1246 (5th Cir.1980), cert. denied 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981). Indeed, if inadequate damages were the sole test for compromise, Rule 59(a) would serve no purpose. The inquiry must focus on indicia of compromise apparent from the record as delineated and discussed above. Burger King Corp. v. Mason, 710 F.2d at 1487; Mekdeci v. Merrell National Laboratories, 711 F.2d at 1513-1514. In the cases cited by defendants, it was the unique circumstances taken together in each trial that provided sufficient indicia of compromise. For example, in Mekdeci, supra, it was a prolonged jury deliberation with a number of jury notes and the quick delivery of an inadequate verdict after a modified Allen charge that established a compromise. 711 F.2d at 1515. In Lucas v. American Manufacturing Co., supra, cited in Mekdeci, the jury returned an inadequate award for the plaintiff after the district court informed the jury of an approaching hurricane and admonished the jury either to finish their deliberations within a brief period of time or return at a later date. Id. at 1514. By contrast, in the case at bar, there is no substantial indication that the jury’s verdict was" }, { "docid": "22819969", "title": "", "text": "its discretion in rejecting the compromise claim. “A compromise verdict is one where it is obvious that the jury compromised the issue of liability by awarding inadequate damages.” Freight Terminals Inc. v. Ryder System, Inc., 461 F.2d 1046, 1053 (5th Cir.1972). However, a review of the cases from the former Fifth Circuit Court of Appeals establishes that a nominal or inadequate finding of damages by itself does not automatically mandate the conclusion that the award was the product of a compromise verdict. See, e.g., Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242, 1247 (5th Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981); Davis v. Becker & Associates, Inc., 608 F.2d 621 (5th Cir.1979); Bassett Furniture Industries of North Carolina, Inc. v. NVF Co., 576 F.2d 1084, 1094 (5th Cir.), reh. denied with opinion, 583 F.2d 778 (5th Cir.1978); Parker v. Wideman, 380 F.2d 433, 437 (5th Cir.1967). Indeed, if inadequate damages was the sole test for a compromise, Rule 59(a) would have little or no purpose. Rather, our inquiry must concentrate on any indicia of compromise apparent from the record, Hatfield, 396 F.2d 721, 723-24, and other factors which may have caused the jury to return a verdict for inadequate damages. See Hadra, 632 F.2d 1242, 1244 n. 1. Only if the “totality of the circumstances” indicates that the issue sought to be excluded by a partial new trial is not separable from the error in the damage award, will a plenary new trial be authorized. See Williams v. Slade, 431 F.2d 605, 609 (5th Cir.1970). Two former Fifth Circuit cases offer instructive examples of situations where the record contained adequate indications of compromise to warrant a complete new trial. In Hatfield, the court held that a jury verdict finding liability and awarding $1.00 in damages was the result of a compromise. The court found that under all the circumstances, including the jury’s confusion concerning contributory negligence and the fact that it took two days to return a verdict, there was strong support for the conclusion that the inadequate award of damages was the" }, { "docid": "22819968", "title": "", "text": "(1930), the Supreme Court enunciated the standard which governs partial new trial practice: [w]here the practice permits a partial new trial, it may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice. Id. at 500, 51 S.Ct. at 515, 75 L.Ed. at 1191. Applying Champlin Refining, the former Fifth Circuit Court of Appeals held that a jury verdict influenced by an improper compromise cannot stand and a complete new trial is required because liability and damages are inseparable. See, e.g., Lucas v. American Manufacturing Co., 630 F.2d 291, 294 (5th Cir.1980); Hatfield v. Seaboard Air Line R.R. Co., 396 F.2d 721, 724 (5th Cir.1968). Hence, if there is a compromised finding on liability, a separate trial on damages alone will not suffice — both liability and damages must be relitigated in a new trial. Id. With this admonition in mind, we focus our attention on whether the district court abused its discretion in rejecting the compromise claim. “A compromise verdict is one where it is obvious that the jury compromised the issue of liability by awarding inadequate damages.” Freight Terminals Inc. v. Ryder System, Inc., 461 F.2d 1046, 1053 (5th Cir.1972). However, a review of the cases from the former Fifth Circuit Court of Appeals establishes that a nominal or inadequate finding of damages by itself does not automatically mandate the conclusion that the award was the product of a compromise verdict. See, e.g., Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242, 1247 (5th Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981); Davis v. Becker & Associates, Inc., 608 F.2d 621 (5th Cir.1979); Bassett Furniture Industries of North Carolina, Inc. v. NVF Co., 576 F.2d 1084, 1094 (5th Cir.), reh. denied with opinion, 583 F.2d 778 (5th Cir.1978); Parker v. Wideman, 380 F.2d 433, 437 (5th Cir.1967). Indeed, if inadequate damages was the sole test for a compromise, Rule 59(a) would have little or no purpose. Rather, our inquiry" }, { "docid": "10496170", "title": "", "text": "(3d Cir.1983) (“scope of review in determining the propriety of an order granting only a partial retrial is whether the district court abused its discretion in so ruling”). The general rule as to when a partial retrial may be ordered has been stated by the Supreme Court in Gasoline Products Co., Inc. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931): Where the practice permits a partial new trial, it may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice. The Third Circuit has recently applied this standard to reverse the award of a partial new trial where evidence of a compromise verdict was present. Stanton, 718 F.2d at 576-78. See Heckman v. Federal Press Co., 587 F.2d 612, 619 (3d Cir.1978) (applying standard and ordering a new trial on both liability and compensatory damages issues). The Circuit also cited Gasoline Products in an older decision declining to award a partial retrial, as opposed to a full retrial, after reversal of an award of punitive damages. Smyth Sales v. Petroleum Heat & Power Co., 141 F.2d 41 (3d Cir. 1944). In Smyth Sales, Judge Maris, writing for the panel, stated the following: It is apparent, therefore, that the determination of the amount of punitive damages, if any, to be awarded under the Connecticut law cannot appropriately take place except in connection with the consideration by the jury of the whole question of the defendant’s liability and of all the circumstances which it is asserted give rise to that liability. It would, therefore, be inappropriate for us under these circumstances to direct what under other circumstances we might well be inclined to order, namely, a new trial of the issue of damages only. Gasoline Prods. Co. v. Champlin Refining Co., 1931, 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188. 141 F.2d at 45. See Atlantic Coast Line Railroad Co. v. Bennett, 251 F.2d 934, 939 (4th Cir.1958) (reads" }, { "docid": "22819970", "title": "", "text": "must concentrate on any indicia of compromise apparent from the record, Hatfield, 396 F.2d 721, 723-24, and other factors which may have caused the jury to return a verdict for inadequate damages. See Hadra, 632 F.2d 1242, 1244 n. 1. Only if the “totality of the circumstances” indicates that the issue sought to be excluded by a partial new trial is not separable from the error in the damage award, will a plenary new trial be authorized. See Williams v. Slade, 431 F.2d 605, 609 (5th Cir.1970). Two former Fifth Circuit cases offer instructive examples of situations where the record contained adequate indications of compromise to warrant a complete new trial. In Hatfield, the court held that a jury verdict finding liability and awarding $1.00 in damages was the result of a compromise. The court found that under all the circumstances, including the jury’s confusion concerning contributory negligence and the fact that it took two days to return a verdict, there was strong support for the conclusion that the inadequate award of damages was the culmination of a compromise among the jurors. The former Fifth Circuit again determined that the jury probably compromised in Lucas v. American Manufacturing Co., 630 F.2d 291 (5th Cir.1980). In Lucas, the trial judge admonished the jury to return a verdict quickly because a hurricane was approaching the city. The jury did so, but after finding the defendant liable, awarded the plaintiff patently inadequate damages. On appeal, the Fifth Circuit remanded for a new trial on liability and damages. The court reasoned that in their haste to decide the case before the arrival of the hurricane, the jurors probably compromised, agreeing to find liability only if the damages were kept to a minimum. By contrast, the court has rejected the compromise theory when the record discloses another basis for the improper award. For example, in Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242 (5th Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981), the jury found that the defendant had breached the plaintiff’s employment contract but awarded no damages. The" }, { "docid": "10946602", "title": "", "text": "Champlin Refining Co., supra, the Supreme Court enunciated the standard which governs partial new trial practice: [Wjhere the practice permits a partial new trial, it may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice. Id. at 500, 51 S.Ct. at 515. Thus, a jury verdict influenced by an improper compromise, on its face, cannot stand and a complete new trial is required. See, e.g., Lucas v. American Manufacturing Co, 630 F.2d 291, 294 (5th Cir.1980; Bartholemew v. Universe Tankships, Inc., 263 F.2d 437 (2d Cir.1959). A compromise verdict results when jurors resolve their inability to make a determination with any unanimity as to liability by finding inadequate damages. See Freight Terminals, Inc. v. Ryder System, Inc., 461 F.2d 1046, 1053 (5th Cir.1972). In this Circuit, a new trial on all issues is required when a “totally inadequate verdict was rendered which could only have been a sympathy or compromise verdict ... [b]ut where there is no substantial indication that the liability and damage issues are inextricably interwoven ... a second trial limited to damages is entirely proper.” Great Coastal Express, Inc. v. International Brotherhood of Teamsters, etc., 511 F.2d 839, 846 (4th Cir.1975); Southern Railway v. Madden, 235 F.2d 198 (4th Cir.1956), cert. denied, 352 U.S. 953, 77 S.Ct. 328, 1 L.Ed.2d 244 (1956). (emphasis added) As stated by the Fifth and Eleventh Circuits, a compromise verdict “is one where it is obvious that the jury compromised the issue of liability by awarding inadequate damages.” Burger King Corp. v. Mason, 710 F.2d at 1487; Freight Terminals, Inc. v. Ryder System, Inc., 461 F.2d at 1053. (emphasis added). In order to determine whether or not a compromise verdict was reached by the jury, in cases where an inadequate award of damages resulted, courts have considered a number of factors. These factors include (1) clarity of the jury instructions and verdict form; (2) length of the jury deliberations; (3) strength of the evidence as to liability;" }, { "docid": "9557508", "title": "", "text": "passengers for their losses. A compromise judgment is one reached when the jury, unable to agree on liability, compromises that disagreement and enters a low award of damages. Lucas v. American Manufacturing Co., 630 F.2d 291, 294 (5th Cir.1980); Young v. International Paper Co., 322 F.2d 820, 823 (4th Cir.1963). While a court may order a new trial on damages only, Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931), it should not do so if it has reason to believe the jury reached a compromise verdict. See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2814, at 96 (1973). Because a court does not question jurors about their reasoning processes, it can only speculate how the jury calculated the damage award. To determine whether a verdict is a compromise verdict, a court looks for a close question of liability, a damages award that is grossly inadequate, and other circumstances such as length of jury deliberation. See, e.g., Vizzini v. Ford Motor Co., 569 F.2d 754, 761 (3d Cir.1977); Hatfield v. Seaboard Air Line Railroad, 396 F.2d 721, 723 (5th Cir.1968); Hamasaki v. Flotho, 39 Cal.2d 602, 248 P.2d 910, 911 (1952). While a grossly inadequate award of damages by itself does not require retrying the liability issue, suspicion should be aroused if the jury awards only nominal damages, see, e.g., Hatfield v. Seaboard Air Line Railroad, 396 F.2d 721 (5th Cir.1968) (jury award of $1 when plaintiff had uncontested special damages of $2,795.75 and substantial pain and suffering); Schuerholz v. Roach, 58 F.2d 32 (4th Cir.) (jury award of $625 when plaintiff had been blinded in one eye), cert. denied, 287 U.S. 623, 53 S.Ct. 78, 77 L.Ed. 541 (1932), disregards uncontested and obvious damages, see, e.g., Lucas v. American Manufacturing Co., 630 F.2d 291 (5th Cir. 1980) (jury award of $3,500 when plaintiff had stipulated special damages of $8,503); National Fire Insurance Co. of Hartford v. Great Lakes Warehouse Corp., 261 F.2d 35 (7th Cir.1958) (jury award of $3,252.49 when plaintiff had uncontested damages of" }, { "docid": "22819971", "title": "", "text": "culmination of a compromise among the jurors. The former Fifth Circuit again determined that the jury probably compromised in Lucas v. American Manufacturing Co., 630 F.2d 291 (5th Cir.1980). In Lucas, the trial judge admonished the jury to return a verdict quickly because a hurricane was approaching the city. The jury did so, but after finding the defendant liable, awarded the plaintiff patently inadequate damages. On appeal, the Fifth Circuit remanded for a new trial on liability and damages. The court reasoned that in their haste to decide the case before the arrival of the hurricane, the jurors probably compromised, agreeing to find liability only if the damages were kept to a minimum. By contrast, the court has rejected the compromise theory when the record discloses another basis for the improper award. For example, in Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242 (5th Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981), the jury found that the defendant had breached the plaintiff’s employment contract but awarded no damages. The district court ordered a new trial confined to the plaintiffs’ claim of damages for the breach. The Fifth Circuit affirmed the grant of a partial new trial. The court rejected the defendant’s contention that the jury verdict was the product of a compromise, thereby affirming the district court’s explanation that the failure to afford monetary relief could have resulted from an improper determination that the plaintiff failed to mitigate his damages by accepting alternative employment. See 632 F.2d at 1244, n. 1. In Hadra, the court emphasized that the defendant pointed to “no circumstances, such as those listed in Hatfield, that indicate the possibility of a compromise verdict ... ”. Id. at 1246. Consequently, since there was sufficient evidence to support the jury’s finding of liability, the court held that it was proper to order a new trial limited to damages. The record before us confirms our belief that the liability and damages issues were also separable in this instance. First, and foremost, the jury repeatedly found that Mason failed to establish its affirmative defenses," }, { "docid": "23463406", "title": "", "text": "and the propriety of granting a new trial on fewer than all of the issues in a case hinges on whether the issues to be retried are sufficiently “distinct and separable from the others that a trial of [those issues] alone may be had without injustice.” Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931). Considerations of economy, fairness, and repose may provide justification for preserving a jury’s liability determination that-has been fairly and fully made and ordering only a new trial on damages “where there is no substantial indication that the liability and damage issues are inextricably interwoven, or that the first jury verdict was the result of a compromise of the liability and damage questions.” Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 511 F.2d 839, 846-47 (4th Cir.1975). We review a district court’s decision to grant a partial new trial for abuse of discretion. See Swentek v. USAIR, Inc., 830 F.2d 552, 560 (4th Cir.1987); Great Coastal Express, 511 F.2d at 847. In this case, we find no indication in the record to support National Vendors’ suggestion that the district court’s decision to set aside the first jury’s punitive damage award necessitated a full retrial on all issues because the jury’s “prejudice” may have infected its rulings on Atlas’ substantive claims. A jury’s reasonable findings of liability and compensatory damages are not rendered unreasonable simply on the basis that it awarded ah excessive amount of punitive damages. Moreover, in this case, the district court concluded that there was sufficient evidence to support the jury’s liability and compensatory damage findings, and\" National Vendors has not appealed any of those rulings. We also conclude that the district court’s decision to limit the second trial to punitive damage issues was not an abuse of discretion based on the interrelationship of punitive damage issues with other issues in the case. All of the evidence relating to National Vendors’ willful or wanton conduct was before the second jury, enabling it to render a prop er verdict on both the liability for" }, { "docid": "12060913", "title": "", "text": "Burger King Corp. v. Mason, 710 F.2d 1480 (11th Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1599, 80 L.Ed.2d 130 (1984) (where there is a compromise finding on liability, a separate trial on damages alone will not suffice). See generally C. Wright and A. Miller, Federal Practice and Procedure: Civil, § 2814 (1973 and Supp.1990). The Eleventh Circuit has stated a clear and concise definition of a compromise verdict: A compromise verdict results when jurors resolve their inability to make a determination with any certainty or unanimity on the issue of liability by finding inadequate damages. See Freight Terminals, Inc. v. Ryder System, Inc., 461 F.2d 1046, 1053 (5th Cir.1972). However, an insufficient damages verdict, standing alone, does not necessarily indicate a compromise. See, e.g., Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242, 1246 (5th Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981). Parker v. Wideman, 380 F.2d 433, 437 (5th Cir.1967). Ordinarily there must be other evidence demonstrating that the deficient monetary award resulted from an impermissible compromise. Mekdeci, 711 F.2d at 1513. In addition to inadequate damages, the telltale signs of a compromise verdict are a close question of liability and an odd chronology of jury deliberations. See, e.g., Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1446 (10th Cir.1988) (inadequate damages, close liability and odd chronology of jury deliberations including a deadlock); Mekdeci, 711 F.2d at 1514 (low damages, close liability and clear indication from jury of its indecision and a deadlock). Compare Spell, 824 F.2d at 1384-85 (grossly inadequate damages but no other clear indication); Burger King Corp., 710 F.2d at 1487 (inadequate damages but no other indicia). See also Wagenmann v. Adams, 829 F.2d 196 (1st Cir.1987) (extremely high damages award, fairly strong liability evidence, no reason to believe jury disregarded instructions of court). Here, the low damages award was the only sign of a compromise verdict. Plaintiffs evidence on strict liability (breach of implied warranty) was strong. It showed that without a plastic guard that was designed to be attached in front of the machine’s moving parts," }, { "docid": "1701885", "title": "", "text": "all or part of the issues,” id. (emphasis added), and we will disturb a ruling on a Rule 59 motion only if we find an abuse of discretion. See Wheatley v. Beetar, 637 F.2d 863, 865 (2d Cir.1980). The “most common example” of a partial new trial is “a new trial limited to damages when liability has been properly deter-mined_” 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2814, at 93 (1973). “[A] new trial on damages only is not proper if there is reason to think that the verdict may represent a compromise among jurors with different views on whether defendant was liable or if for some other reason it appears that the error on the damage issue may have affected the determination of liability.” Id. § 2814, at 29 (Supp.1992); see also Spell v. McDaniel, 824 F.2d 1380, 1400 (4th Cir.1987), cert. denied, 484 U.S. 1027, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988). An inadequate damages award, standing alone, does not indicate a compromise among jurors. See, e.g., Hadra v. Herman Blum Consulting Eng’rs, 632 F.2d 1242, 1245-46 (5th Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981). Besides inadequate damages, there must be other indicia of compromise, such as difficulty in jury deliberations or close questions of liability. Compare Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1445-46 (10th Cir.1988) (jury compromise indicated by. inadequate damages, close questions of liability and difficult deliberations) and Mekdeci v. Merrell Nat’l Labs., 711 F.2d 1510, 1514-15 (11th Cir.1983) (same) with Phav v. Trueblood, Inc., 915 F.2d 764, 768-69 (1st Cir.1990) (affirming grant of partial new trial where only indication of juror compromise was inadequate damages award) and Burger King Corp. v. Mason, 710 F.2d 1480, 1487-88 (11th Cir.1983) (same), cert. denied, 465 U.S. 1102, 104 S.Ct. 1599, 80 L.Ed.2d 130 (1984). In this case, as in the Phav and Burger King cases, supra, there were no indicia of a jury compromise other than the low damages award. The jury deliberated only one day, without incident, and the issue of the defendants’" }, { "docid": "7379245", "title": "", "text": "presented at trial or the jury’s determination of liability. 3. Compromise Verdict Carter’s argument that the jury’s verdict resulted from impermissible compromise is substantially undermined by our conclusions that Carter waived her objection to the District Court’s failure to instruct the jury on the definition of proximate cause and that the jury’s verdict was consistent. Nonetheless, Carter strongly urges us to order a new trial on this basis. A compromise verdict results when jurors resolve their inability to reach a determination with any certainty or unanimity on issues of liability by awarding a party inadequate damages. See Mekdeci v. Merrell Nat’l Lab., 711 F.2d 1510, 1513 (11th Cir.1983); see also National R.R. Passenger Corp. v. Koch Indus., Inc., 701 F.2d 108, 110 (10th Cir.1983) (“A compromise judgment is one reached when the jury, unable to agree on liability, compromises that disagreement and enters a low award of damages.”). “However, an insufficient damages verdict, standing alone, does not necessarily indicate a compromise.” Mekdeci, 711 F.2d at 1513. Typically, some additional evidence demonstrating that the deficient monetary award resulted from an impermissible compromise is required. Id. We have recognized that a verdict can be considered a result of jury compromise when the verdict is “so grossly inadequate as to compel the conclusion that [it] represented a compromise by the jury on the question of liability and damages.” National Fire Ins. Co. of Hartford v. Great Lakes Warehouse Corp., 261 F.2d 35, 37 (7th Cir.1958); see also National R.R. Passenger Corp., 701 F.2d at 110 (“While a grossly inadequate award of damages by itself does not require retrying the liability issue, suspicion should be aroused if the jury awards only nominal damages.”). Consideration of several factors may be useful when examining whether a verdict is a result of jury compromise. These factors include “a damages award that is grossly inadequate, a close question of liability, and an odd chronology of jury deliberations.” Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1445-46 (10th Cir.1988); see also Mekdeci, 711 F.2d at 1514 (listing additional factors that may be considered). While these factors certainly may be" }, { "docid": "12060912", "title": "", "text": "compensating plaintiff only for his medical expenses, was the result of a compromise on liability. II. Rule 59(a) of the Federal Rules of Civil Procedure provides that a new trial may be granted “on all or part of the issues.” Where a verdict is set aside because of an inadequate damages award, retrial of all the issues is required “if the verdict ‘could only have been a sympathy or compromise verdict.’ ” Spell v. McDaniel, 824 F.2d 1380, 1400 (4th Cir.1987), cert. denied, 484 U.S. 1027, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988) (quoting Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 511 F.2d 839, 846 (4th Cir.1975), cert. denied, 425 U.S. 975, 96 S.Ct. 2176, 48 L.Ed.2d 799 (1976)). “ ‘[B]ut where there is no substantial indication that the liability and damages issues are inextricably interwoven ... a second trial limited to damages is entirely proper.’ ” Id. See also Mekdeci, 711 F.2d at 1513 (11th Cir.1983) (retrial limited to damages not appropriate where there are indications jury may have rendered compromise verdict); Burger King Corp. v. Mason, 710 F.2d 1480 (11th Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1599, 80 L.Ed.2d 130 (1984) (where there is a compromise finding on liability, a separate trial on damages alone will not suffice). See generally C. Wright and A. Miller, Federal Practice and Procedure: Civil, § 2814 (1973 and Supp.1990). The Eleventh Circuit has stated a clear and concise definition of a compromise verdict: A compromise verdict results when jurors resolve their inability to make a determination with any certainty or unanimity on the issue of liability by finding inadequate damages. See Freight Terminals, Inc. v. Ryder System, Inc., 461 F.2d 1046, 1053 (5th Cir.1972). However, an insufficient damages verdict, standing alone, does not necessarily indicate a compromise. See, e.g., Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242, 1246 (5th Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981). Parker v. Wideman, 380 F.2d 433, 437 (5th Cir.1967). Ordinarily there must be other evidence demonstrating that the deficient monetary award resulted from an impermissible" }, { "docid": "23126677", "title": "", "text": "630 F.2d 291, 293 (5th Cir.1980). Fed.R.Civ.P. 59(a) authorizes a trial court to grant a new trial “to all or any of the parties and on all or part of the issues ... for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States.” Traditionally, an inadequate award of damages may constitute a sufficient reason to set aside a jury verdict. See, e.g., Lucas, 630 F.2d at 293; see also C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049,1053 (5th Cir.), cert. denied, 454 U.S. 1125, 102 S.Ct. 974, 71 L.Ed.2d 112 (1981). While Rule 59 permits a limited retrial on damages in that instance, a partial new trial is appropriate only in certain circumstances. As the Supreme Court has instructed, [w]here the practice permits a partial new trial, it may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice. Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188, 1191 (1931); see also Lucas, 630 F.2d at 294. In accordance with that mandate, this court has required a complete new trial “when the issues of liability and damages were tried together and there are indications that the jury may have rendered a compromise verdict.” Lucas, 630 F.2d at 294; see also Hatfield v. Seaboard Air Line Railroad Co., 396 F.2d 721, 724 (5th Cir. 1968); see generally J. Moore, 6A Moore’s Federal Practice ¶ 59.06 (2d ed. 1979). A compromise verdict results when jurors resolve their inability to make a determination with any certainty or unanimity on the issue of liability by finding inadequate damages. See Freight Terminals, Inc. v. Ryder System, Inc., 461 F.2d 1046, 1053 (5th Cir.1972). However, an insufficient damages verdict, standing alone, does not necessarily indicate a compromise. See, e.g., Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242, 1246 (5th Cir. 1980), cert. denied, 451 U.S." } ]

[ { "docid": "23624371", "title": "", "text": "to comply with the order to pay over the moneys identified could result in proceedings to punish for contempt. The referee denied the claimant’s motion to vacate the service, and this was affirmed by the District Court. We affirm the order of the District Court. Appellant does not contest the fact that it is within the power of the referee to disallow the claim filed by Nortex until such time as Nortex surrenders the alleged preference. This power is expressly provided in section 57, sub. g of the Bankruptcy Act, 11 U.S.C. § 93, sub. g. It contends however, that the order to show cause goes further and seeks affirmative relief — in substance, a turnover order — necessitating personal service. We do not agree. We are persuaded by the analogy between the proceedings before us and the ordinary counterclaim in a civil action under Rule 13 of the Federal Rules. Service of a pleading containing a counterclaim may be made upon the opponent’s attorney. 3 Moore’s Federal Practice, para. 13.10 (1948). See General Order 4, 11 U.S.C. foll. § 53. The filing by Nortex of its proof of claim is analogous to the commencement of an action within the bankruptcy proceeding. See In the Matter of American Anthracite & Bituminous Coal Corp., 22 F.R.D. 504, 507 (S.D.N.Y. 1958). The trustee’s petition is in the nature of an answer incorporating an affirmative request for relief by way of surrender of the preference. It has often been recognized that counterclaims by the trustee against a claimant are within the summary jurisdiction of the bankruptcy court. See Inter-State National Bank v. Luther, 221 F.2d 382 (10th Cir. 1955); Conway v. Union Bank, 204 F.2d. 603, 607 (2d Cir. 1953); In re Solar Mfg. Corp., 200 F.2d 327 (3d Cir. 1952); In re Nathan, 98 F.Supp. 686 (S.D.Cal. 1951); cf. Kleid v. Ruthbell Coal Co., 131 F.2d 372 (2d Cir. 1942). The claimant is deemed to consent to the jurisdiction of the court upon filing its proof of claim. So too, in the case before us, the petition to disgorge the preference was" } ]

[ { "docid": "6760847", "title": "", "text": "(6th Cir.1983). In the O’Neill and Stephens Groups’ view, the initial “judicial ... proceeding ... commenced” on September 24, 1983, when Continental filed a chapter 11 petition for reorganization; thus, this proceeding, they argue, should be deemed initiated by the debtor. We disagree. While it may be true that this appeal is linked to the 1983 bankruptcy proceedings, filed by Continental, proofs of claim to which the debtor objects, including this one, are undoubtedly “against the debtor” in the context of § 362(a)(1). This case is different from Freeman, upon which the O’Neill and Stephens Groups rely so heavily. We determined that § 362(a) did not stay that case, a petition for redetermination of federal income tax liability, because the proceedings were clearly begun by the debtor. 799 F.2d at 1093. In contrast, the dispute over the pilots’ claim for furlough pay, initiated against Continental, is the subject of the litigation before us. As we stated in In re Simmons, 765 F.2d 547 (5th Cir.1985), the filing of a proof of claim is analogous to the filing of a complaint in a civil action, with the bankrupt’s objection the same as the answer. See id. at 552 (citing Nortex Trading Corp. v. Newfield, 311 F.2d 163, 164 (2d Cir.1962)). Accordingly, we reject the pilots’ contention that the present appeal is the continuation of a judicial proceeding initiated by the debtor, and hold that the § 362(a) stay applies. Only the Delaware bankruptcy court may grant relief from the effect of the automatic stay provision. See 11 U.S.C. § 362(d), (f). The parties are instructed to inform this Court in the event that the Delaware court grants such relief or if the stay lapses. Until we receive such information, all proceedings herein with respect to this appeal are stayed pursuant to the March 15, 1991, Order. APPENDIX (March 15, 1991) Before BROWN, POLITZ, and JOHNSON, Circuit Judges. BY THE COURT: ORDER Pending before us is an appeal from a summary judgment order of the United States District Court for the Southern District of Texas, Singleton, J., affirming the Bankruptcy Court’s grant" }, { "docid": "1923789", "title": "", "text": "is commenced by filing a complaint, while a bankruptcy case is commenced by filing a petition. (Memorandum, Adversary Proceeding No. 14-A-00674, Dkt. No. 6, p. 18-19); see also F.R. Civ. P. 3; 11 U.S.C. § 301. This, however, is not entirely persuasive. The similarity of the language of the two sections provides a strong indication that Congress intended for a bankruptcy petition to commence a civil form of action. Compare F.R. Civ. P. 3 (“A civil action is commenced by filing a complaint ...”) with 11 U.S.C. § 301 (“A voluntary case under a chapter of this title is commenced by the filing with the bankruptcy court a petition ... ”) (emphasis added); see dlso In re Simmons, 765 F.2d 547, 552 (5th Cir.1985) (“It has been said that the filing of a proof of claim is tantamount to the filing of a complaint in a civil action”); Nortex Trading Corp. V. Newfield, 311 F.2d 163, 164 (2nd Cir.1962) (“The filing by Nortex of its proof of claim is analogous to the commencement of an action”). As such, when the Defendants filed the proof of claim, it was a legal pleading filed either in a civil action or beginning one. The filing of a proof of claim is specifically exempt by § 1692g(d) of the FDCPA from the vali dation letter requirement, and the Defendants need not worry about violating the FDCPA in this regard. Moreover, the FDCPA requires a validation letter to be sent within five days of an initial communication “unless the following information is contained in the initial communication.” 15 U.S.C. § 1692g(a) (going on to specify the required information). The Defendants provide no explanation as to why they are unable to provide the specified information when they file a proof of claim, participate in the § 341 meeting, object to plan confirmation or pursue motions for relief from stay. There is no reason why the Defendants cannot comply with both the Code and the FDCPA. Finally, the court need not decide whether compliance with FDCPA and the Code in all four of these situations is possible" }, { "docid": "1923788", "title": "", "text": "conflict and make compliance with both impossible. Specifically, their argument centers around the FDCPA’s requirement that a debt validation letter be sent to the debtor within five days of an initial communication. 15 U.S.C. § 1692g. The problem, they argue, is that sending this letter would violate the automatic stay. The Defendants claim that debt collector creditors cannot both comply with the FDCPA and (1) file a proof of claim, (2) participate in a § 341 meeting, (3) object to plan confirmation, or (4) pursue motion for relief from stay. Unfortunately, this argument fails as well. A “communication in the form of a formal pleading in a civil action shall not be treated as an initial communication.” 15 U.S.C. § 1692g(d). As a result, the Seventh Circuit has held that legal pleadings, such as complaints, no longer need to be accompanied by a validation letter. Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480 F.3d 470, 473 (7th Cir.2007). The Defendants argue that a bankruptcy case is not a civil action because a civil action is commenced by filing a complaint, while a bankruptcy case is commenced by filing a petition. (Memorandum, Adversary Proceeding No. 14-A-00674, Dkt. No. 6, p. 18-19); see also F.R. Civ. P. 3; 11 U.S.C. § 301. This, however, is not entirely persuasive. The similarity of the language of the two sections provides a strong indication that Congress intended for a bankruptcy petition to commence a civil form of action. Compare F.R. Civ. P. 3 (“A civil action is commenced by filing a complaint ...”) with 11 U.S.C. § 301 (“A voluntary case under a chapter of this title is commenced by the filing with the bankruptcy court a petition ... ”) (emphasis added); see dlso In re Simmons, 765 F.2d 547, 552 (5th Cir.1985) (“It has been said that the filing of a proof of claim is tantamount to the filing of a complaint in a civil action”); Nortex Trading Corp. V. Newfield, 311 F.2d 163, 164 (2nd Cir.1962) (“The filing by Nortex of its proof of claim is analogous to the commencement of an" }, { "docid": "3275495", "title": "", "text": "91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the non-moving party must set forth specific facts sufficient to raise a genuine issue for trial, and may not rest on its pleadings or mere assertions of disputed facts to defeat the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When reviewing the record for summary judgment, the court is required to draw all reasonable inferences in favor of the non-movant. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991). B. Allegation of Violation of the Fair Debt Collection Act Debtors allege in their adversary complaint that filing a proof of claim on a time-barred debt is a violation of the FDCPA. Debtors urge the Court to adopt and apply the 11th Circuit’s holding in Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir.2014). In that case, the debtor filed for bankruptcy in 2008 and proposed to repay creditors over a five year period. LVNV filed a proof of claim in the bankruptcy case on a debt outside the statute of limitations. Neither the debtor nor the trustee objected to the claim and the debt- or continued to pay on all debts including the LVNV claim. After four years, the debtor realized the LVNV claim was based on a stale debt and filed an objection to the claim and an adversary proceeding against LVNV for violation of the FDCPA. The Crawford court found that LVNV did violate the FDCPA by filing a time-barred proof of claim because absent an objection, the claim is automatically allowed against a debtor and was therefore “unfair, unconscionable, deceptive and misleading” within the broad scope of § 1692e and § 1692f. Debtors argue that filing a time-barred proof of claim violates the FDCPA. First, Debtors assert that filing a proof of claim is akin to collecting a debt and analogous to the filing of a complaint in a civil action. Citing In re Brimmage, 523 B.R. 134 (Bankr.N.D.Ill.2015) and Smith v. Dowden, 47 F.3d 940 (8th" }, { "docid": "3275496", "title": "", "text": "a proof of claim in the bankruptcy case on a debt outside the statute of limitations. Neither the debtor nor the trustee objected to the claim and the debt- or continued to pay on all debts including the LVNV claim. After four years, the debtor realized the LVNV claim was based on a stale debt and filed an objection to the claim and an adversary proceeding against LVNV for violation of the FDCPA. The Crawford court found that LVNV did violate the FDCPA by filing a time-barred proof of claim because absent an objection, the claim is automatically allowed against a debtor and was therefore “unfair, unconscionable, deceptive and misleading” within the broad scope of § 1692e and § 1692f. Debtors argue that filing a time-barred proof of claim violates the FDCPA. First, Debtors assert that filing a proof of claim is akin to collecting a debt and analogous to the filing of a complaint in a civil action. Citing In re Brimmage, 523 B.R. 134 (Bankr.N.D.Ill.2015) and Smith v. Dowden, 47 F.3d 940 (8th Cir.1995). The FDCPA prohibits debt collectors from taking any action that cannot legally be taken in connection with the collection of a debt. See 15 U.S.C. § 1692e(5). Numerous district and circuit courts have held that the FDCPA prohibits a defendant from filing a lawsuit to collect a time-barred debt, see, e.g., Freyermuth v. Credit Bureau Services, 248 F.3d 767, 771 (8th Cir.2001). Debtors argue that action taken in bankruptcy courts should not be exempt from this prohibition because if they are then debt collectors will have a blanket immunity to pursue claims in bankruptcy court that they could not pursue in a non-bankruptcy court context. Debtors argue that not only will this practice harm debtors but that it will also harm legitimate creditors because they will receive a lesser amount paid on their timely claims. Debtors also assert that the Bankruptcy Code and the FDCPA are not incompatible and thus can co-exist and courts can enforce both. Defendants of course disagree. They contend that the FDCPA protections are inapplicable in the bankruptcy context because" }, { "docid": "16897907", "title": "", "text": "not be prejudicial to Debtors because they were required under the Plan to reserve funds to pay the $15 million claim, if allowed. Dulles also argued that the amendment was not barred by judicial estoppel because it never argued that ED2000 did not owe rent. Instead, it previously argued that the construction obligation did not constitute rent as to ETC. However, as to ED2000, Dulles maintained that it preserved arguing that the construction obligation constituted prepetition unpaid rent. In maintaining that the Theatre construction obligation was unpaid rent under § 502(b)(6)(B), Dulles argued that the McSheridan test was inapplicable to § 502(b)(6)(B). IV. DISCUSSION The Ninth Circuit has a long established policy that an amendment to a proof of claim is to be liberally granted. See Roberts Farms Inc. v. Bultman (In re Roberts Farms Inc.), 980 F.2d 1248, 1251 (9th Cir.1992). The crucial inquiry is whether the opposing party would be unduly prejudiced by the amendment. Id. Filing a proof of claim is analogous to filing a complaint in a civil action. See Smith v. Dowden, 47 F.3d 940, 943 (8th Cir.1995); Simmons v. Savell (In re Simmons), 765 F.2d 547, 552 (5th Cir.1985); Nortex Trading Corp. v. Newfield, 311 F.2d 163, 164 (2d Cir.1962). Amending a claim is governed by Federal Rules of Civil Procedure (“FRCP”) 15(a), which is made applicable to bankruptcy proceedings by Rule 7015: A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise, a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. Fed.R.BanKR.P. 7015(a). The Supreme Court interpreted FRCP 15(a) in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). There, the petitioner originally filed a" }, { "docid": "8933550", "title": "", "text": "that, despite CashCall’s representations to the bankruptcy court and to this Court that it has abandoned its claim on the loan, the bankruptcy court nevertheless properly denied the motion to withdraw the proof of claim. I cannot agree. Federal Rule of Bankruptcy Procedure 3006 provides .that: If after a creditor has filed a proof of claim an objection is filed thereto or a complaint is filed against that creditor in an adversary proceeding, ... the creditor may not withdraw the claim except on order of the court after a hearing on notice to the trustee or debtor in possession .... A motion to withdraw a proof of claim under Rule 3006 has been analogized to a motion under Federal Rule of Civil Procedure 41(a), and thus similar considerations govern both motions. See, e.g., In re Varona, 388 B.R. 705, 726 (E.D.Va.2008); In re Kaiser Group Int’l, Inc., 272 B.R. 852, 855 (D.Del.2002); In re 20/20 Sport, Inc., 200 B.R. 972, 979 (S.D.N.Y.1996). “As with a[] motion [to voluntarily dismiss a civil action], a motion to withdraw a proof of claim is left to the court’s discretion, which is ‘to be exercised with due regard to the legitimate interests of both [parties].’ ” In re Ogden New York Servs., 312 B.R. 729, 732 (S.D.N.Y.2004) (quoting 20/20 Sport, Inc., 200 B.R. at 979). “In general, withdrawal should be granted unless the party opposing the motion can demonstrate that it would be legally prejudiced by the withdrawal.” Id.; see also In re Lowenschuss, 67 F.3d 1394, 1399-1400 (9th Cir.1995). Here, Moses failed to demonstrate that she would be “legally prejudiced” by the withdrawal of CashCall’s proof of claim. The bankruptcy court reached the opposite conclusion by reasoning that “allowing CashCall to withdraw its claim would ... eliminat[e] [the court’s] jurisdiction over any cases of action related to the claim,” and force Moses “to file an action in the General Court of Justice for the State of North Carolina or proceed with arbitration as required by the loan agreement.” J.A. 92. This was legal error; the bankruptcy court is simply incorrect that Moses would" }, { "docid": "19106569", "title": "", "text": "the effect of a voluntary withdrawal of a proof of claim. In short, the cases and authorities relied upon by Rhodes are inapposite and are not helpful to a resolution of the issue before us. See Smith v. Dowden, 47 F.3d 940, 943 (8th Cir.1995); Simmons v. Savell (In re Simmons), 765 F.2d 547, 552 (5th Cir.1985); In re Eastern Fire Protection, Inc., 44 B.R. 140, 142 (Bankr.E.D.Pa.1984); Nortex Trading Corp. v. Newfield, 311 F.2d 163, 164 (2d Cir.1962); Collier on Bankruptcy, 15th Ed.Rev. ¶ 502.02[2][c]. To our knowledge, neither the Third Circuit nor any District Court or Bankruptcy Court in this District has ruled upon the issue of whether a proof of claim for maritime personal injuries must be disallowed where the claimant failed to file a complaint within the maritime statute of limitations and the thirty day extension afforded by section 108(c). However, several other federal courts have ruled on the effect of a vessel owner’s bankruptcy filing upon the running of a maritime statute of limitations. In Grotting v. Hudson Shipbuilders, Inc., 85 B.R. 568, 569-70 (W.D.Wash.1988), the District Court dismissed a complaint for personal injury damages arising out of a maritime accident filed against a corporation which filed for Chapter 11 relief because the complaint was not filed within three years of the al leged injury or within thirty days of the lifting of the automatic stay. The Court held that “there is no language either in the Automatic Stay provision or the Extension of Time provision of the Bankruptcy Code that suspends a statute of limitations from running.” Id. at 569. The Court in Grotting reasoned that although the predecessor to section 108(c) expressly provided for a “suspension” of any statute of limitations during the pendency of bankruptcy proceedings, no such provision was made by Congress in the current Bankruptcy Code. Therefore, a claimant had three choices: (1) file a motion to lift the automatic stay; (2) file a personal injury complaint after the termination of the bankruptcy proceedings, if the statute of limitations has not run; or (3) file a complaint during the thirty" }, { "docid": "19671378", "title": "", "text": "of Claim constitutes a violation of the automatic stay. In fact, a number of courts, including the District of Columbia Circuit, have found that an automatic stay has no effect on actions that are expressly allowed under the Bankruptcy Code. United States v. Inslaw, Inc., 932 F.2d 1467, 1474 (D.C.Cir.1991). In a case similar to ours, the Bankruptcy Court for the District of South Carolina put a finer point on this more general principle: In re Sammon, 253 B.R. 672, 681 (Bankr. D.S.C.2000); see also Rogers v. B-Real, L.L.C. (In re Rogers), 391 B.R. 317, 324 (Bankr.M.D.La.2008) (adopting In re Sammon’s analysis and collecting other cases that have done so). [T]he automatic stay serves to protect the bankruptcy estate from actions taken by creditors outside the bankruptcy court forum, not legal actions taken within the bankruptcy court. The filing of a Proof of Claim before a bankruptcy court ... is the logical equivalent of a request for relief from the automatic stay, which cannot itself constitute a violation of the stay .... The just-quoted In re Sammon opinion analyzed procedural rules, Code provisions, and case law before concluding that even the filing of a “grossly overstated” amount on a Proof of Claim would not violate the automatic stay. 253 B.R. at 680. Most convincing to us is the point that there would not be any damages because any disagreement with the claim may be addressed immediately by the debtor’s counsel by responding to that official court filing. Id. at 681. Indeed, a dispute within the bankruptcy court over the Countrywide filing began almost immediately. The analysis in these cases is persuasive. The Bankruptcy Code allows creditors to assert any claim, even if that claim is contingent, unmatured, or disputed. 11 U.S.C. §§ 101(5), 501(a). A debtor may object to the claim; the bankruptcy court then determines whether to allow the claim. 11 U.S.C. § 502; see Simmons v. Simmons (In re Simmons), 765 F.2d 547, 552 (5th Cir.1985) (filing an objection “joints] issue in a contested matter, thereby placing the parties on notice that litigation is required to resolve an" }, { "docid": "12811221", "title": "", "text": "eases by Rule 9024. See Property Damage Claimants Identified on Exhibit “A” v. H.K. Porter Co., Inc. (In re H.K. Porter Co., Inc.), 156 B.R. 149, 150 (Bankr.W.D.Pa.1993). CDC argues that there are two separate bases that would warrant this Court to reconsider the December 10, 1996 order: (1) Debtor’s failure to provide CDC’s counsel with notice of the Objection despite counsel’s specific requests that she be served with such a notice, and (2) CDC’s failure to timely respond to the objection was the result of excusable neglect. I. Failure to Notify CDC Counsel. The subject motion deals with a question which I do not find addressed in the reported cases, namely, whether a debtor, when it seeks to disallow and expunge a proof of claim pursuant to Rule 3007, is required to notify the claimant’s counsel who has filed a notice of appearance and request for service of papers pursuant to Rule 9010. My analysis of the bankruptcy rules leads me to con-elude that the debtor cannot ignore the rights of the creditor which arise out of the notice of appearance and request for service filed pursuant to Rule 9010. “The procedure for filing objections to the allowance of claims is established in part by Fed. R, Bankr.P. 3007.” United States v. Levoy (In re Levoy), 182 B.R. 827, 833 (9th Cir. BAP 1995). The objection must be in writing and filed with the bankruptcy court, and a copy of the objection must be mailed or otherwise delivered to the claimant. See Rule 3007. As a bankruptcy appellate panel has recently noted, Rule 3007 does not provide the manner for service of the objection to a proof of claim. See Levoy, 182 B.R. at 833. “Most authorities agree that claim objections are contested matters.” Id. at 834. See also United States v. Oxylance Corp., 115 B.R. 380, 380 (N.D.Ga.1990); 9 Collier On Bankruptcy, ¶3007.01[1] (Lawrence D. King ed., 15th ed.1997). Cf. Advisory Committee Note accompanying Rule 3006 (1983) (providing that “[t]he filing of a claim does not commence an adversary proceeding but the filing of an objection to the" }, { "docid": "19106568", "title": "", "text": "However, none of the eases or authorities cited by Rhodes to support this assertion address or involve the precise issue before us, namely, whether a proof of claim for personal injuries under federal maritime law should be disallowed when the claimant failed to file a complaint within the applicable maritime statute of limitation and the thirty day extension thereof permitted by section 108(c). Furthermore, these cases and authorities do not stand for the proposition that the filing of a proof of claim is equivalent to the filing of a complaint for purposes of the running of the statute of limitations on a personal injury cause of action or for the proposition that the filing of a proof of claim tolls the statute of limitations on such a cause of action. Rather, the cases and authorities relied upon by Rhodes cite this proposition as part of a general analysis of the procedure to be applied in proof of claim litigation and deal with issues such as the burden of proof in proof of claim litigation and the effect of a voluntary withdrawal of a proof of claim. In short, the cases and authorities relied upon by Rhodes are inapposite and are not helpful to a resolution of the issue before us. See Smith v. Dowden, 47 F.3d 940, 943 (8th Cir.1995); Simmons v. Savell (In re Simmons), 765 F.2d 547, 552 (5th Cir.1985); In re Eastern Fire Protection, Inc., 44 B.R. 140, 142 (Bankr.E.D.Pa.1984); Nortex Trading Corp. v. Newfield, 311 F.2d 163, 164 (2d Cir.1962); Collier on Bankruptcy, 15th Ed.Rev. ¶ 502.02[2][c]. To our knowledge, neither the Third Circuit nor any District Court or Bankruptcy Court in this District has ruled upon the issue of whether a proof of claim for maritime personal injuries must be disallowed where the claimant failed to file a complaint within the maritime statute of limitations and the thirty day extension afforded by section 108(c). However, several other federal courts have ruled on the effect of a vessel owner’s bankruptcy filing upon the running of a maritime statute of limitations. In Grotting v. Hudson Shipbuilders, Inc.," }, { "docid": "12811243", "title": "", "text": "at the address shown in the petition or statement of affairs or to such other address as the debtor may designate in filed writing and if the debtor is represented by an attorneys to the attorney at the attorney's post-office address. Rule 7004(b)(9) (emphasis added). .Rule 9010(a) provides as follows: A debtor, creditor, equity security holder, indenture trustee, committee or other party may (1) appear in a case under the Code and act either in the entity’s own behalf or by an attorney authorized to practice in the court, and (2) perform any act not constituting the practice of law, by an authorized agent, attorney in fact, or proxy. Rule 9010(a). . In a non-bankruptcy context, a court of appeals has also recognized the importance of simultaneous service of legal papers on attorneys. See Graham v. United States, 96 F.3d 446, 448 (9th Cir.1996) (holding that where party is known to be represented by counsel, legal papers must be served on that parly's counsel even though applicable statute does not require it). For my detailed discussion of the applicability of the Graham case to a related notice to counsel issue in a bankruptcy context see In re Grand Union Co., 204 B.R. 864 (Bankr.D.Del.1997). . My view on this matter is not unprecedented. See Simmons v. Savell (In re Simmons), 765 F.2d 547, 552 (5th Cir.1985) (noting that \"[i]t has been said that the filing of a proof of claim is tantamount to the filing of a complaint in a civil action ... and the trustee’s formal objection to the claim, the answer”) (citation omitted). . Debtor argues that Levoy supports its conclusion. I disagree. Levoy is inapposite. There, the appellate panel held that Rule 7004 governs the manner by which service of a claim objection is made. See Levoy, 182 B.R. at 834. The panel, citing Rule 7004(b)(4), also held that a notice of an objection to IRS claims must be mailed to the Attorney General of the United States in Washington, D.C. and to the office of the local United States Attorney. See id. at 834-45. The panel," }, { "docid": "19327790", "title": "", "text": "to “hear and determine all cases under title 11 and all core proceedings arising under title 11, ... and may enter appropriate orders and judgments.” 28 U.S.C. § 157(b)(1). The filing of a proof of claim is the prototypical situation involving the “allowance or disallowance of claims against the estate,” a core proceeding un der 28 U.S.C. § 157(b)(2). See, e.g., Continental Nat’l Bank v. Sanchez (In re Toledo), 170 F.3d 1340, 1349-50 (11th Cir.1999) (stating that a proof of claim is within the bankruptcy court’s jurisdiction even if the underlying claim is based on state law); Wood v. Wood (In re Wood), 825 F.2d 90, 97 (5th Cir.1987) (“[A] claim filed against the estate is a core proceeding because it could arise only in the context of a bankruptcy”). Therefore, there is no question that the bankruptcy court had jurisdiction over the proof of claim itself because it is a core matter; rather, the issue is whether the bankruptcy court had jurisdiction to determine the validity of the underlying agreement supporting Benedor’s claim. By filing the proof of claim, Benedor voluntarily subjected the agreement to the bankruptcy court’s jurisdiction as well, because the agreement is an integral component of the bankruptcy court’s consideration of Benedor’s claim. Under Bankr. Rule 3001, a creditor filing a proof of claim must attach a copy of the underlying contract to establish prima facie evidence of the validity of the contract. This requirement would be meaningless unless the bankruptcy court’s jurisdiction extended to consideration of the underlying contract supporting the claim. In other words, a bankruptcy court can only consider an objection to a claim and thus overcome the presumption of its validity by examining the contract itself and the circumstances surrounding its formation. See Ashford v. Consolidated Pioneer Mortgage (In re Consolidated Pioneer Mortgage), 178 B.R. 222, 226 (9th Cir. BAP 1995) (“Upon the filing of an objection, the objecting party ‘must produce evidence tending to defeat the claim that is of a probative force equal to that of the creditor’s proof of claim.’ ”) (quoting In re Simmons, 765 F.2d 547, 552" }, { "docid": "6582992", "title": "", "text": "arguments that Guild needed no notice of his amended objection, and that bank- ruptcy cases generally require none, is unpersuasive. Second, Lawler argues that the notice and service requirements of Code Rules 3007 and 9014 and Act Rules 306(c) and 914 are somehow abrogated by the Fifth Circuit’s opinion in In re Simmons, 765 F.2d 547, 552 (5th Cir.1985) (citing Nortex Trading Corp. v. Newfield, 311 F.2d 163 (2d Cir.1962)). There the court observed in dicta: It has been said that the filing of a proof of claim is tantamount to the filing of a complaint in a civil action ... and the trustee’s formal objection to the claim, the answer. Simmons, 765 F.2d at 552 (citations omitted). This statement does not, however, abrogate the provisions of the bankruptcy rules in favor of the pleading requirements of the Federal Rules of Civil Procedure. If the objection is joined with ... a counterclaim, it becomes an adversary proceeding under Rule 3007 and is governed by the procedures set out in Part YII of the Bankruptcy Rules. Simmons, 765 F.2d at 552 n. 5. To recover damages, “an objection to claim coupled with a counterclaim for affirmative relief ... must be begun by adversary proceedings under Part YII of the Bankruptcy Rules and not as a mere objection to claim, a contested matter, under [Act] Rule 914.” 14 Moore and King, Collier on Bankruptcy ¶ 11 — 33.09[1] at 11-33-29 (14th ed. 1976). The same principle applies under Code Rule 3007. 8 King, Collier on Bankruptcy II 3007.03 at 3007-2 to 3007-3 and n. 4 (15th ed. 1989). Thus, no matter whether the Act or Code Rules apply, Lawler was required to comply with the service and filing requirements of Code Rules 7003 and 7004 or Act Rules 703 and 704. Even assuming arguendo that proper notice of the amended objection was given by Lawler under Code Rule 3007 or Act Rule 306(c) or was waived by Guild, the bankruptcy court was nonetheless without authority to grant affirmative relief on Lawler’s malpractice claim unless an adversary proceeding had been properly commenced. At" }, { "docid": "10557562", "title": "", "text": "the Objection should be dismissed because the United States, not the IRS, is the proper party to respond to the Objection. The Court certainly agrees with the general proposition that the IRS cannot be sued and the proper party in 'actions involving federal taxes is the United States. See, e.g., In re Core Group, Inc. 350 B.R. 629, 631 (Bankr.M.D.Pa.2006). If the Debtors were bringing an adversary action against the IRS seeking some sort of affirmative relief the Court would have little difficulty concluding that they had named the wrong party. That, however, is not what happened here. The Proof of Claim that was filed by the government in this case identified “Department of the Treasury — Internal Revenue Service” in the space designated for the name of the creditor. In other words, it was the government, not the Debtors, that chose to use the designation of the IRS rather than the United States as the claimant. It has long been recognized that the filing of a proof of claim is tantamount to the filing of a complaint in a civil matter, with an objection thereby functioning as an answer. See In re Simmons, 765 F.2d 547, 552 (5th Cir.1985); 3 Collier on Bankruptcy at ¶ 502.01 (2008). The position of the IRS is thus equivalent to the IRS having filed a complaint in its own name against the Debtors and then objecting when the Debtors file their answer in like fashion, naming the IRS rather than the United States. The Court finds such an argument to be specious, and concludes that principles of waiver and estoppel preclude the IRS from making it solely for purposes of denying the Objection. In addition, there are other reasons to find that the Objection properly identifies the IRS as the Respondent. First, as alluded to above, the Debtors are not seeking affirmative relief against the IRS, they are merely attacking the claim filed against them by the IRS. To the extent they are successful it will only mean that they do not owe anything to the IRS or that the amount they owe" }, { "docid": "16311639", "title": "", "text": "is not required by the Bankruptcy Code, the bankruptcy rules, or any reasonable policy consideration. (Although not a factor here because the debtor’s plan provides for payment of claims in full, in many cases the reduction or disallowance of a claim will increase the amount paid to other creditors. At the time a plan is confirmed, the chapter 13 trustee or creditors may not know all the facts regarding the allowability of a claim; they should not be barred from objecting to claims after confirmation.) Neither the Bankruptcy Code nor the Federal Rules of Bankruptcy Procedure require that objections be filed prior to confirmation. Sound policy considerations require that debtors and other parties in interest be permitted to raise objections after confirmation. Thus, many courts have decided that post-confirmation claims objections are permissible. E.g., United States v. Kolstad (In re Kolstad), 928 F.2d 171, 174 (5th Cir.1991); Morton v. Morton (In re Morton), 298 B.R. 301, 309-10 (6th Cir. BAP 2003); Hildebrand v. Hays Imports, Inc. (In re Johnson), 279 B.R. 218 (Bankr.M.D.Tenn.2002); see Keith M. Lundin, Chapter 13 Bankruptcy, 3d Ed. § 287.1, at 287-23 and 287-25 (2000 & Supp.2004). Contra, e.g., Adair v. Sherman, 230 F.3d 890, 894-95 (7th Cir.2000); Simmons v. Savell (In re Simmons), 765 F.2d 547, 553 (5th Cir.1985); cf. In re Starling, 251 B.R. 908, 910 (Bankr.S.D.Fla.2000). The Court must consider, however, whether the Eleventh Circuit’s decision in Universal American Mortgage Co. v. Bateman (In re Bateman), 331 F.3d 821 (11th Cir.2003), requires a contrary ruling. In Bateman, the Eleventh Circuit stated, id. at 827: Although § 502(a) does not provide a time limit to file an objection [to a claim], it must be filed prior to confirmation. An examination of the facts and holdings of Bateman shows that this statement is dicta that does not establish a general rule applicable to cases like this. In Bateman, the debtor’s chapter 13 plan proposed to pay the arrearage on a home mortgage loan, which the plan stated was in the disputed amount of $21,600. The lender timely filed a proof of claim for an arrearage" }, { "docid": "10557563", "title": "", "text": "of a complaint in a civil matter, with an objection thereby functioning as an answer. See In re Simmons, 765 F.2d 547, 552 (5th Cir.1985); 3 Collier on Bankruptcy at ¶ 502.01 (2008). The position of the IRS is thus equivalent to the IRS having filed a complaint in its own name against the Debtors and then objecting when the Debtors file their answer in like fashion, naming the IRS rather than the United States. The Court finds such an argument to be specious, and concludes that principles of waiver and estoppel preclude the IRS from making it solely for purposes of denying the Objection. In addition, there are other reasons to find that the Objection properly identifies the IRS as the Respondent. First, as alluded to above, the Debtors are not seeking affirmative relief against the IRS, they are merely attacking the claim filed against them by the IRS. To the extent they are successful it will only mean that they do not owe anything to the IRS or that the amount they owe is less than is set forth in the Proof of Claim. Thus, the Objection is solely defensive in nature and cannot be analogized to the Debtors “suing” the IRS. Second, the Court has located a number of other reported decisions in which the IRS has filed a Proof of Claim and then gone on to defend against an objection to that claim without ever contending that the debtor had somehow erred by not naming the United States as the Respondent in the objection. See, e.g., In re Higgins, 2008 WL 471684 (Bankr. E.D.Tenn.2008); In re I. & F. Corp., 219 B.R. 483 (Bankr.S.D.Ohio 1998). The IRS will likewise be able to defend against the Objection here without the need for the “United States” to be named as respondent. Finally, as a simple matter of efficient judicial administration, the Court is loathe to permit, let alone require, a pleading filed by an opposing party in response to a document previously filed, to unilaterally take the liberty of changing the name of the party that filed the" }, { "docid": "6582991", "title": "", "text": "need not be filed if it would serve no purpose. See Lawler’s brief at 30-31. See also 11 U.S.C. § 93(f) (repealed): Objections to claims shall be heard and determined as soon as the convenience of the court and the best interests of the estates and the claimants will permit., These policy reasons for not having a deadline to file objections in bankruptcy cases generally did not apply in this case on the date Lawler filed his amended objection. As of December 2, 1983, a substantial payment on the principal amount of all claims (possibly 100%) was contemplated by Lawler’s plan. Moreover, Lawler’s earlier objection to Guild’s proof of claim was clearly indicative of a need, perceived by Lawler and the court in the February 17, 1984 scheduling order, to dispose of claims in an orderly and efficient way. And it is apparent that the documentation attached to Guild’s amended proof of claim consisted of copies of bills for attorneys fees and expenses that Lawler had received in 1974 and 1975. Against this backdrop, Lawler’s arguments that Guild needed no notice of his amended objection, and that bank- ruptcy cases generally require none, is unpersuasive. Second, Lawler argues that the notice and service requirements of Code Rules 3007 and 9014 and Act Rules 306(c) and 914 are somehow abrogated by the Fifth Circuit’s opinion in In re Simmons, 765 F.2d 547, 552 (5th Cir.1985) (citing Nortex Trading Corp. v. Newfield, 311 F.2d 163 (2d Cir.1962)). There the court observed in dicta: It has been said that the filing of a proof of claim is tantamount to the filing of a complaint in a civil action ... and the trustee’s formal objection to the claim, the answer. Simmons, 765 F.2d at 552 (citations omitted). This statement does not, however, abrogate the provisions of the bankruptcy rules in favor of the pleading requirements of the Federal Rules of Civil Procedure. If the objection is joined with ... a counterclaim, it becomes an adversary proceeding under Rule 3007 and is governed by the procedures set out in Part YII of the Bankruptcy Rules." }, { "docid": "12811244", "title": "", "text": "discussion of the applicability of the Graham case to a related notice to counsel issue in a bankruptcy context see In re Grand Union Co., 204 B.R. 864 (Bankr.D.Del.1997). . My view on this matter is not unprecedented. See Simmons v. Savell (In re Simmons), 765 F.2d 547, 552 (5th Cir.1985) (noting that \"[i]t has been said that the filing of a proof of claim is tantamount to the filing of a complaint in a civil action ... and the trustee’s formal objection to the claim, the answer”) (citation omitted). . Debtor argues that Levoy supports its conclusion. I disagree. Levoy is inapposite. There, the appellate panel held that Rule 7004 governs the manner by which service of a claim objection is made. See Levoy, 182 B.R. at 834. The panel, citing Rule 7004(b)(4), also held that a notice of an objection to IRS claims must be mailed to the Attorney General of the United States in Washington, D.C. and to the office of the local United States Attorney. See id. at 834-45. The panel, however, was not faced with the issue before me — whether counsel representing a claimant should be served with a claim objection — since attorneys representing IRS (i.e., the Attorney General and the United States Attorney) were timely served with notice of its objection pursuant to Rule 7004(b)(4). The issue there was whether notice was constitutionally adequate where the street address and zip code were not included on the mailing to the Attorney General of the United States, which was answered affirmative. See id. .Debtor asserts that when the associate received the copy of the Objection in connection with the Kissell claim, his physical receipt of the copy constituted adequate service of Debtor’s objection to CDC claim. (Doc. # 1562 at 5) (claiming that \"service of process is SOLELY a matter of delivering a pleading, and is wholly independent of what the recipient is focusing on after delivery is made”) (emphasis original). Given the facts involved here, I do not subscribe to such a form over substance argument." }, { "docid": "19327791", "title": "", "text": "filing the proof of claim, Benedor voluntarily subjected the agreement to the bankruptcy court’s jurisdiction as well, because the agreement is an integral component of the bankruptcy court’s consideration of Benedor’s claim. Under Bankr. Rule 3001, a creditor filing a proof of claim must attach a copy of the underlying contract to establish prima facie evidence of the validity of the contract. This requirement would be meaningless unless the bankruptcy court’s jurisdiction extended to consideration of the underlying contract supporting the claim. In other words, a bankruptcy court can only consider an objection to a claim and thus overcome the presumption of its validity by examining the contract itself and the circumstances surrounding its formation. See Ashford v. Consolidated Pioneer Mortgage (In re Consolidated Pioneer Mortgage), 178 B.R. 222, 226 (9th Cir. BAP 1995) (“Upon the filing of an objection, the objecting party ‘must produce evidence tending to defeat the claim that is of a probative force equal to that of the creditor’s proof of claim.’ ”) (quoting In re Simmons, 765 F.2d 547, 552 (5th Cir.1985)), aff'd without opinion, 91 F.3d 151 (9th Cir.1996). Thus, the district court correctly concluded that “[t]he determination of the validity of the contract for the purposes of disallowing the 502(g) based claim, is basically a non-core issue of state breach of contract being subsumed into a core proceeding (regarding allowance of claim) and thereby coming under the jurisdiction of the bankruptcy court.” B. Benedor’s second contention is that the trustee lacks standing to challenge the validity of a rejected contract. Specifically, Benedor points to the general rule that an executory contract does not become part of the bankruptcy estate unless the trustee affirmatively assumes it. See Otto Preminger Films, Ltd. v. Qintex Entertainment, Inc. (In re Qintex Entertainment, Inc.), 950 F.2d 1492, 1495 (9th Cir.1991). Therefore, Benedor argues, the trustee lacks standing to object to any contract that is not part of the bankruptcy estate. See Chbat v. Tleel (In re Tleel), 876 F.2d 769, 770 (9th Cir.1989). Benedor’s argument would be meritorious if the trustee was attempting to challenge the contract and" } ]

[ { "docid": "22651796", "title": "", "text": "system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case. For instance, if a plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case. See Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 121 (1985) (“[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination”). Under the Second Circuit’s heightened pleading standard, a plaintiff without direct evidence of discrimination at the time of his complaint must plead a prima facie case of discrimination, even though discovery might uncover such direct evidence. It thus seems incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered. Moreover, the precise requirements of a prima facie case can vary depending on the context and were “never intended to be rigid, mechanized, or ritualistic.” Furnco Constr. Corp. v. Waters, 438 U. S. 567, 577 (1978); see also McDonnell Douglas, supra, at 802, n. 13 (“[T]he specification ... of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations”); Teamsters v. United States, 431 U. S. 324, 358 (1977) (noting that this Court “did not purport to create an inflexible formulation” for a prima facie case); Ring v. First Interstate Mortgage, Inc., 984 F. 2d 924, 927 (CA8 1993) (“[T]o measure a plaintiff’s complaint against a particular formulation of the prima facie case at the pleading stage is inappropriate”). Before discovery has unearthed relevant facts and evidence, it may be difficult to define the precise formulation of the required prima facie case in a particular case. Given that the prima facie case operates as a flexible evidentiary standard, it should not be transposed into a rigid pleading standard for discrimination cases. Furthermore, imposing the Court of Appeals’ heightened pleading standard in employment discrimination cases" } ]

[ { "docid": "13087152", "title": "", "text": "Jasany v. United States Postal Service, 755 F.2d 1244, 1249-50, n. 5 (6th Cir.1985); Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 374 (6th Cir.1984). Thus, the prima facie case focuses upon the primary factual inquiries of any disparate treatment case: “ ‘[whether] the defendant intentionally discriminated against the plaintiff’ ”, and whether the employer treats people less favorably than others because of race, color, religion, sex or national origin. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983) (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093 and Fumco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (quoting Teamsters v. United States, 431 U.S. 324, 335, n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977)). The Supreme Court first set forth a model for a prima facie case of disparate treatment racial discrimination in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The court ruled that a plaintiff alleging racial discrimination in rehiring establishes a prima facie case by showing that he belongs to a racial minority; that he applied and was qualified for a job for which the employer was seeking applicants; and that after his rejection, the position remained open and the employer continued to seek similarly qualified applicants. 411 U.S. at 802, 93 S.Ct. at 1824. The McDonnell Douglas Court, however, never intended that this identical framework be applied to all disparate treatment cases. See McDonnell Douglas, 411 U.S. at 802, n. 13, 93 S.Ct. at 1824, n. 13; see also Texas Department of Community Affairs v. Burdine, 450 U.S. at 253-54, n. 6, 101 S.Ct. at 1093-94 n. 6. As noted recently in Aikens, “[t]he prima facie case method established in McDonnell Douglas was ‘never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.’ ” U.S. Postal Service" }, { "docid": "22217924", "title": "", "text": "defendant raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981). See Chaney, 847 F.2d at 722; Griffin v. Carlin, 755 F.2d 1516, 1526 (11th Cir.1985). If he is to prevail, the plaintiff then must establish that the employer's articulated reason was a pretext for discrimination. See Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973); Chaney, 847 F.2d at 722; Conner, 761 F.2d at 1499. Throughout the trial the plaintiff retains the ultimate burden of proving by a preponderance of the evidence the existence of purposeful discrimination. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). See Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1184 (11th Cir.1984) (“The ‘ultimate question’ in a disparate treatment case is not whether the plaintiff established a prima facie case or demonstrated pretext, but ‘whether the defendant intentionally discriminated against the plaintiff\"), quoting Aikens, 460 U.S. at 714-15, 103 S.Ct. at 1481-82. The Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), set forth one method of making out a pri-ma facie Title VII case. However, the Court has made clear that its formulation was not meant to be exclusive, and that a prima facie case of disparate treatment may be established in a number of ways. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) (“The prima facie case method ... was ‘never intended to be rigid, mechanistic, or ritualistic’ ”), quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 n. 13, 93 S.Ct. 1817, 1824 n. 13 (“The facts necessarily will vary in Title VII cases, and the specification" }, { "docid": "14954171", "title": "", "text": "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. 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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (citation and internal quotation marks omitted). The Court has emphasized, however, that the “central focus of the inquiry” in such cases “is always whether the employer is treating ‘some people less favorably than others because of their race, color, religion, sex, or national origin.’ ” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)); see also Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (noting that the “ultimate burden,” which “remains at all times with the plaintiff,” is to persuade the trier of fact “that. the defendant intentionally discriminated against the plaintiff’). The McDonnell Douglas framework “was ‘never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question -of discrimination.’ ” United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (quoting Furnco, 438 U.S. at 577, 98 S.Ct. 2943). Accordingly, the Court has instructed that [w]here the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether “the defendant intentionally discriminated" }, { "docid": "22902865", "title": "", "text": "and Murray’s adoption of that test, because the plaintiff in Pierce could not meet the second prong of the McDonnell Douglas test. Here, as stated above, the District Court substituted the “background circumstances” requirement for the minority group status otherwise required under the first prong of the McDonnell Douglas test. We now reject the “background circumstances” analysis set forth in Parker, Harding, and their progeny. The prima facie case under McDonnell Douglas merely states “the basic allocation of burdens and order of presentation of proof [under] Title VII ...” Burdine, 450 U.S. at 252, 101 S.Ct. 1089. It raises an inference of discrimination only because we presume these acts, if otherwise unexplained in the context of the prongs of the McDonnell Douglas prima facie case, are more likely than not based on the consideration of impermissible factors. See Furnco Const. Corp. v. Waiers, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). However, “[t]he central focus of the inquiry ... is always whether the employer is treating some people less favorably than others because of their race, color, religion, sex, or national origin.” Id. (internal quotation marks omitted). Accordingly, all that should be required to establish a prima facie case in the context of “reverse discrimination” is for the plaintiff to present sufficient evidence to allow a fact finder to conclude that the employer is treating some people less favorably than others based upon a trait that is protected under Title VII. The factual inquiry in a Title VII case is whether the defendant intentionally discriminated against the plaintiff. In other words, is the employer treating some people less favorably than others because of their race, color, religion, sex, or national origin. The prima facie case method established in McDonnell Douglas was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination. U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). Stating the prima" }, { "docid": "19212345", "title": "", "text": "Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). In disparate treatment cases based on circumstantial evidence, courts apply the analytical framework of shifting burdens developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny. Under this framework, the plaintiff has the burden of establishing a prima facie case of discrimination. Texas Dep’t. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). Once established, the prima facie case raises a legal presumption of discrimination in the plaintiffs favor, requiring the defendant to produce legitimate, nondiscriminatory reasons for its actions. Id. If such reasons are put forth, the plaintiff, who at all times retains the burden of proving discrimination, may attempt to demonstrate that the proffered reasons are pretex-tual. Id. This framework is designed as a “sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). On appeal, our focus is on the “critical question,” not on the sufficiency of a party’s showing at any particular stage of the McDonnell Douglas analysis. Morgan v. Arkansas Gazette, 897 F.2d 945, 948 (8th Cir.1990). We are guided, however, by the Supreme Court’s most recent refinement of the McDonnell Douglas test in St. Mary’s Honor Center v. Hicks, — U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), which clarifies when the question of discrimination is to be left to the finder of fact and when it may be decided as a matter of law. In Hicks, the Supreme Court held that a panel of this Court had erred in concluding that a finding that the employer’s proffered nondiscriminatory reasons for its actions were pretextual compelled a judgment as a matter of law for the plaintiff. — U.S. at -, 113 S.Ct. at 2749. The Court stated that the legal presumption that would justify a judgment as a matter of law based on the" }, { "docid": "10003867", "title": "", "text": "Rights Act, [2] that he was discharged without valid cause, and [3] that the employer continued to solicit applications for the vacant position.” Id. at 865. Failure to prove any one of these elements by a preponderance of the evidences mandates a dismissal of the plaintiffs suit. Morvay v. Maghielse Tool & Die Co., 708 F.2d 229, 233 (6th Cir.), cert. denied, 464 U.S. 1011, 104 S.Ct. 534, 78 L.Ed.2d 715 (1983). Case law subsequent to McDonnell Douglas has emphasized that the prima facie method “was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). See also United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). “The burden of establishing a prima facie case of disparate treatment is not onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1094. However articulated, the significance of the prima facie case is that it permits an “inference of discrimination ... because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco, 438 U.S. at 577, 98 S.Ct. at 2949. Thus, “[t]he central inquiry in evaluating whether the plaintiff has met his initial burden is whether the circumstantial evidence presented is sufficient to create an inference [of discrimination].” B. Schlei and P. Grossman, Employment Discrimination Law 247 (Supp.1983-84). The essence of a- disparate treatment case is that “[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15. See also Furnco, 438 U.S. at 577, 98 S.Ct. at 2949. Rowe, 690 F.2d at 92. Accordingly, “individual disparate treatment ... cases generally require indirect evidence from which an inference of discriminatory motive may be drawn, namely, comparative evidence demonstrating" }, { "docid": "12933396", "title": "", "text": "for reverse discrimination cases, because requiring a reverse discrimination plaintiff to show that the specific employer has displayed a pattern of discrimination against the majority in the past imposes a more onerous burden on such a plaintiff as compared to any plaintiff from any protected group. This is antagonistic to the very purposes of Title VII itself. In McDonnell Douglas, the Court in a footnote recognized that “the facts necessarily will vary in Title VII case, and the specification above of the prima facie proof required from [a plaintiff] is not necessarily applicable in every respect to differing factual situations.” McDonnell Douglas, 411 U.S. at 802, n. 13. Thus, the elements for a prima facie ease articulated in McDonnell Douglas are not the exclusive means by which a plaintiff can establish the basics of a discrimination claim. The Supreme Court reinforced this proposition in U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), stating: The “factual inquiry” in a Title VII case is “whether the defendant intentionally discriminated against the plaintiff.” Burdine, supra, at 253. In other words, is “the employer ... treating ‘some people less favorably than others because of their race, color, religion, sex, or national origin.’ ” Furnco Const. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978), quoting Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). The prima facie case method established in McDonnell Douglas was “never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Fumco, supra, 438 U.S. at 577. Aikens 460 U.S. at 715. In short, attempting to cram a reverse discrimination case into the McDonnell Douglas framework is not a reasonable approach in these cases. This Court, instead, chooses to follow the Supreme Court’s advice in Aikens and, quite simply, will look to whether or not an inference can be drawn from the" }, { "docid": "15245656", "title": "", "text": "dissent’s statement that “the only shred of evidence ... that could conceivably suggest any racial animus” was the racially derogatory joke. Dissenting opinion, infra, at 1245-1246. See also Racozy illustration, id. at 1246 (implying that circumstantial evidence irrel evant). An imposition of a direct evidence requirement is without precedent, and, in this time of sophisticated employers would effectively eviscerate section 1981. Moreover, a requirement of direct evidence would fly in the face of Aikens where, in an analogous situation, the Supreme Court found error in the district court’s requirement of direct evidence. 103 S.Ct. at 1481 n. 3. To allocate the burden of production in section 1981 cases, courts have borrowed the Title VII guidelines announced in McDonnell-Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Metrocare v. Washington Metropolitan Area Transit Authority, 679 F.2d at 925. Under these standards, the plaintiff has the initial burden of establishing a prima facie case. Once this prima facie case is established, a rebuttable “presumption that the employer discriminated against” the employee arises. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). To rebut this presumption, the defendant either can disprove the prima facie case or can articulate some legitimate, nondiscriminatory reason for the action. Plaintiff then has the opportunity to demonstrate that the proffered reasons are pretextual. United States Postal Service Board of Governors v. Aikens, 103 S.Ct. at 1482 n. 15. One method for the plaintiff to attack the defendant’s justifications is to show that the alleged explanation is unworthy of credence. Id. at 1483 (Blackmun, J., concurring). The McDonnell-Douglas standards, however, were “never intended to be rigid, mechanized or ritualistic. Rather, [they are] merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Id. at 1482 (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978)). In a case requiring discriminatory animus, the three-step procedure is merely one method to adduce evidence relevant" }, { "docid": "17206219", "title": "", "text": "1089, 67 L.Ed.2d 207 (1981), the Court noted that the establishment of a prima facie case creates a rebuttable presumption that the employer has unlawfully discriminated; once the employer offers evidence of a legitimate reason for the rejection of the complainant, the presumption “is rebutted” and “the factual inquiry proceeds to a new level of specificity.” Id. at 255 and n. 10, 101 S.Ct. at 1095 and n. 10. The Court has emphasized that at all times, the Title VII complainant retains the ultimate burden of persuading the trier of fact that the employer intentionally and unlawfully discriminated against the complainant. The “division of intermediate evidentiary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94. Several other Supreme Court decisions since McDonnell Douglas have further clarified the nature of the parties’ burdens as set forth above. In Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978), the Court noted that “[t]he method suggested in McDonnell Douglas for pursuing [the inquiry of whether the employer is discriminating in violation of Title VII] was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” A. Plaintiff’s Prima Facie Case Consistent with the policy set forth in Furnco, the Court recently provided further guidance to lower courts in United States Postal Service Board of Governors v. Aikens, — U.S. —, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). In Aikens, the Court reiterated that the complainant’s initial burden of establishing a prima facie case is not onerous, and reviewing courts should not be preoccupied with whether a prima facie case has been established. See also Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94. Rather, the Aikens Court stated: Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really" }, { "docid": "22217925", "title": "", "text": "a prima facie case or demonstrated pretext, but ‘whether the defendant intentionally discriminated against the plaintiff\"), quoting Aikens, 460 U.S. at 714-15, 103 S.Ct. at 1481-82. The Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), set forth one method of making out a pri-ma facie Title VII case. However, the Court has made clear that its formulation was not meant to be exclusive, and that a prima facie case of disparate treatment may be established in a number of ways. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) (“The prima facie case method ... was ‘never intended to be rigid, mechanistic, or ritualistic’ ”), quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 n. 13, 93 S.Ct. 1817, 1824 n. 13 (“The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations”); Nix, 738 F.2d at 1185 (“A prima facie case of discriminatory discharge may be established in different ways”). Although the McDonnell Douglas prima facie model was initially developed in the context of a discriminatory hiring claim, the purpose underlying that method of analysis—to focus the inquiry by eliminating “the most common nondiscriminatory reasons” for the employer’s action, see Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94; Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1184 (11th Cir.1984)—retains equal validity where discriminatory discipline is alleged. We agree with the Fourth Circuit that “[t]he most important variables in the disciplinary context, and the most likely sources of different but nondiscriminatory treatment, are the nature of the offenses com mitted and the nature of the punishments imposed.” Moore v. City of Charlotte, 754 F.2d 1100, 1105 (4th Cir.), cert. denied, 472 U.S. 1021, 105 S.Ct. 3489, 87 L.Ed.2d 623 (1985). Accordingly, we hold that, in cases involving" }, { "docid": "7263593", "title": "", "text": "Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207, 215 (1981). The phrase “prima facie case” may denote not only the establishment of a legally mandatory, rebuttable presumption, but also may be used by courts to describe the plaintiff’s burden of producing enough evidence to permit the trier of fact to infer the fact at issue. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. In McDonnell Douglas Corp. v. Green, 411 U.S. 792,802,93 S.Ct. 1817,1824, 36 L.Ed.2d 668 (1973), the Supreme Court described an appropriate model for a prima facie case of racial discrimination. The Court stated that the plaintiff must show: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications While the Court specified the prima facie case in the above terms, it was careful to note that such proof is not necessarily applicable in every respect to differing factual situations. McDonnell Douglas Corp., 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. The prima facie case method suggested in McDonnell Douglas “was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco Construction v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). To rebut this presumption, “the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection.” Burdine, 450 U.S. at 255, 101 S.Ct. at 1094; Smith v. State of Georgia, 684 F.2d 729, 733 (11th Cir.1982). In other words, the defendant must “[introduce] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason.” Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; Smith, 684 F.2d at 733. Because the appellants and" }, { "docid": "22951852", "title": "", "text": "analytical framework governing claims of disparate treatment and/or disparate impact under Title VII has been set forth in numerous opinions of this court, and we decline to fill the pages of the Federal Reporter by once again trodding that well-worn path. This is a disparate treatment claim. The Supreme Court has set forth the elements of a prima facie disparate treatment claim, and the mechanics of burden-shifting once such a claim has been established, in McDonnell Douglas v. Green, as clarified in Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978), and, most importantly, Texas Department of Community Affairs v. Burdine. The Supreme Court, and this court, have stressed time and again that the four-part McDonnell Douglas test for establishing a prima facie case of disparate treatment is not intended to be a Procrustean bed within which all disparate treatment cases must be forced to lie. The Court in McDonnell Douglas, recognizing the wide variety of circumstances from which disparate treatment claims might arise, took pains to point out that its specification of the prima facie proof required of a Title VII plaintiff “is not necessarily applicable in every respect to differing factual situations.” McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. The Furnco court reiterated that “[t]he method suggested in McDonnell Douglas for pursuing this inquiry [whether disparate treatment occurred] ... was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco, 438 U.S. at 577, 98 S.Ct. at 2949. The McDonnell Douglas method of establishing a prima facie case addresses two evidentiary problems common to most Title VII cases: (1) direct evidence of discriminatory intent will most likely be nonexistent or difficult to prove; and (2) the employer enjoys greater access to proof of its reasons for its own employment decisions. See Loeb v. Textron, 600 F.2d 1003, 1014 (1st Cir.1979). McDonnell Douglas therefore allows the plaintiff to shift a burden" }, { "docid": "15366154", "title": "", "text": "for discrimination. See Burdine, 450 U.S. at 253-54, 101 S.Ct. 1089; Perryman v. Johnson Products Co., 698 F.2d 1138, 1142 (11th Cir.1983). A plaintiff is entitled to survive a defendant’s motion for summary judgment if there is sufficient evidence to demonstrate the existence of a genuine issue of material fact regarding the truth of the employer’s proffered reasons for its actions. Combs, 106 F.3d at 1529. A prima facie case along with sufficient evidence to reject the employer’s explanation is all that is needed to permit a finding of intentional discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993); Combs, 106 F.3d at 1529. This McDonnell Douglas-Burdine proof structure “was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); see also Grigsby v. Reynolds Metals Co., 821 F.2d 590, 594 (11th Cir.1987). The Eleventh Circuit has held that this framework of shifting burdens of proof is a valuable tool for analyzing evidence in cases involving alleged disparate treatment, but the framework is only a tool. Nix v. WLCY Radio/Rahall Comm., 738 F.2d 1181, 1184 (11th Cir.1984). The “ultimate question” is not whether a plaintiff has established a prima facie case or demonstrated pretext, but “whether the defendant intentionally discriminated against the plaintiff.” Id., 738 F.2d at 1184 (quoting Aikens, 460 U.S. at 713-14, 103 S.Ct. 1478); see also Jones, 137 F.3d at 1313. The plaintiff retains the ultimate burden of proving that the defendant is guilty of intentional discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. 1089. D. PLAINTIFF’S TITLE VII CLAIMS 1. Dr. Akstein’s Liability Plaintiff has asserted claims under Title VII against both Defendant Akstein and the Eye Center, without specifying which Defendants she" }, { "docid": "14054513", "title": "", "text": "Rules, commentary on Rule 52(a), at 128 (West 1985). The purpose of the amendment is to lighten the opinion-writing burden on district courts. One commentator has commended the practice vigorously. See Christensen, A Modest Proposal for Immeasurable Improvement, 64 A.B. A.J. 693 (1978). The commentator argues that the practice will not only relieve an overburdened court system but also improve the quality of judges' fact finding by requiring better preparation. . This framework does not contemplate a trifurcated trial, but rather sets forth the proper analytical process for considering relevant evidence. See Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (the McDonnell Douglas formulation was \"never intended to be rigid, mechanized, and ritualistic”; instead, “it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination”). \"Although cases are analyzed in terms of these three phases, there is no requirement that the evidence be introduced in such a compartmentalized form____ Thus, it is possible that the plaintiffs evidence relevant to the question of pretext can be presented as part of plaintiffs initial evidence going to the prima facie case itself. It is also possible that one party’s evidence and proof may be developed in the context of the other party’s case, such as by cross examination____’’ Worthy v. United States Steel Corp., 616 F.2d 698, 701 (3d Cir.1980) (citations omitted). . “In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon____” F.RXiv.P. 52(a). . Compare Garner v. Giarrusso, 571 F.2d 1330 (5th Cir.1978) (despite district court's failure to cite McDonnell Douglas, court applied proper analysis and considered evidence within the evidentiary framework, making remand unnecessary) with Corley v. Jackson Police Department, 566 F.2d 994 (5th Cir.1978) (district court misconstrued McDonnell Douglas when it did not carry through with the three-step analysis, making remand necessary). By way of" }, { "docid": "11321015", "title": "", "text": "438 U.S. 567, 575-76, 98 S.Ct. 2943, 2948-49, 57 L.Ed.2d 957 (1978) (Furnco). The three stages of proof presentation and burden shifting under McDonnell Douglas entail no trifurcation of trial, but simply provide courts with “a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco, 438 U.S. at 577, 98 S.Ct. at 2949; see generally B. Schlei & P. Grossman, Employment Discrimination Law 1321-22 (2d ed. 1983). A Title VII plaintiff carries “the initial burden under the statute of establishing a prima facie case of racial discrimination.” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Johnson had to show that sex was the likely reason for the denial of his job opportunity. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (Burdine); Hagans v. Andrus, 651 F.2d 622, 625 (9th Cir.), cert. denied, 454 U.S. 859, 102 S.Ct. 313, 70 L.Ed.2d 157 (1981); White v. City of San Diego, 605 F.2d 455, 458 (9th Cir.1979). When this burden is met by the employee, it “creates a rebuttable ‘presumption that the employer unlawfully discriminated against’ him.” Aikens, 460 U.S. at 714, 103 S.Ct. at 1481, quoting Burdine, 450 U.S. at 255, 101 S.Ct. at 1094. At this juncture of the McDonnell Douglas analysis, the question arises whether the use of an affirmative action plan to rebut a charge of employer discrimination is properly part of the plaintiff’s prima facie case or whether it should be considered as a separate affirmative defense subsequent to the McDonnell Douglas analysis. If analyzed under the traditional McDonnell Douglas test, once a Title VII plaintiff establishes a prima facie case, “[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason” for the actions that inspired the complaint. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. To rebut the presumption against him, therefore, the employer must “produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, non-discriminatory reason.” Bur-dine, 450" }, { "docid": "10003866", "title": "", "text": "at 802-04, 93 S.Ct. at 1824-25. The McDonnell Douglas Court stated that in a failure-to-hire case, the Title VII plaintiff may establish a prima facie case of racial discrimination “by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of [plaintiffs] qualifications.” Id. at 802, 93 S.Ct. at 1824. This test was recently reaffirmed in Cooper v. Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 2799, 81 L.Ed.2d 718 (1984). A slightly different test has been applied in the discharge setting: The three elements necessary to establish a prima facie case of discriminatory discharge were specifically enumerated by this court in Potter v. Goodwill Industries, 518 F.2d 864 (6th Cir.1975). A plaintiff must show “[1] that he is a member of a class entitled to the protection of the Civil Rights Act, [2] that he was discharged without valid cause, and [3] that the employer continued to solicit applications for the vacant position.” Id. at 865. Failure to prove any one of these elements by a preponderance of the evidences mandates a dismissal of the plaintiffs suit. Morvay v. Maghielse Tool & Die Co., 708 F.2d 229, 233 (6th Cir.), cert. denied, 464 U.S. 1011, 104 S.Ct. 534, 78 L.Ed.2d 715 (1983). Case law subsequent to McDonnell Douglas has emphasized that the prima facie method “was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). See also United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). “The burden of establishing a prima facie case of disparate treatment is not onerous.” Burdine," }, { "docid": "7756864", "title": "", "text": "VII claim.” Meiri, 759 F.2d at 996. The Court went on to note that “[t]he elements of proof in employment discrimination cases were not intended to be ‘rigid, mechanized or ritualistic.’ ” Id. (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). Rather, the McDonnell Douglas test is merely a \"sensible, orderly way to evaluate evidence as it bears on the critical question of discrimination.” United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed. 2d 403 (1983). Indeed, the Court cautioned in McDonnell Douglas, “[t]he facts necessarily will vary in Title VII cases, and the specification ... of the prima facie proof required from [plaintiff] is not necessarily applicable in every respect to differing factual situations.” 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. In International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977), the Supreme Court reiterated “the importance of McDonnell Douglas lies not in its specification of the discrete elements of proof required, but in its recognition of the general principle that any Title VII plaintiff must carry the burden” of creating an inference of discrimination. Id. at 358, 97 S.Ct. at 1866. See Furnco, 438 U.S. 567, 575-76, 98 S.Ct. 2943, 2949. In light of this precedent, courts have concluded that “it is not necessary for a plaintiff, in each and every discharge case, to establish replacement efforts in order to make out a prima facie case” Wooten v. New York Telephone Co., 485 F.Supp. 748, 760 (S.D.N.Y.1980). The issue of failing to replace a plaintiff’s position upon discharge has arisen with greatest frequency in age discrimination cases. The majority of circuits have held that failure to replace an older employee or replacement by an older employee will not foreclose prima facie proof as long as other direct or circumstantial evidence supports an inference of discrimination. Stanojev v. Ebasco Services, Inc., 643 F.2d 914, 920-21 (2d Cir.1981); Douglas v. Anderson, 656 F.2d 528, 533" }, { "docid": "7263594", "title": "", "text": "careful to note that such proof is not necessarily applicable in every respect to differing factual situations. McDonnell Douglas Corp., 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. The prima facie case method suggested in McDonnell Douglas “was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco Construction v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). To rebut this presumption, “the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection.” Burdine, 450 U.S. at 255, 101 S.Ct. at 1094; Smith v. State of Georgia, 684 F.2d 729, 733 (11th Cir.1982). In other words, the defendant must “[introduce] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason.” Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; Smith, 684 F.2d at 733. Because the appellants and the BOE presented evidence to the district court before the appellants rested their case, the court was in a position to decide the factual issues. The “factual inquiry” in a Title VII case is “whether the defendant intentionally discriminated against the plaintiff.” United States Post a1 Service Board of Governors v. Aikens, -U.S.-,-, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983), quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. The record reveals that no objective standards or policies were promulgated by the BOE regarding the hiring of head coaches within the Birmingham school system. We find that this lack of objective hiring standards contributed to Moore’s establishment of a prima facie case. This court has previously stated that “[t]he failure to establish fixed or reasonably objective standards or procedures for hiring is a discriminatory practice.” Watson v. National Linen Service, 686 F.2d 877, 881 (11th Cir.1982). The former Fifth Circuit has repeatedly held that subjective selection processes involving white supervisors provide a ready mechanism for racial discrimination. Parson v. Kaiser Aluminum & Chemical" }, { "docid": "15245657", "title": "", "text": "arises. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). To rebut this presumption, the defendant either can disprove the prima facie case or can articulate some legitimate, nondiscriminatory reason for the action. Plaintiff then has the opportunity to demonstrate that the proffered reasons are pretextual. United States Postal Service Board of Governors v. Aikens, 103 S.Ct. at 1482 n. 15. One method for the plaintiff to attack the defendant’s justifications is to show that the alleged explanation is unworthy of credence. Id. at 1483 (Blackmun, J., concurring). The McDonnell-Douglas standards, however, were “never intended to be rigid, mechanized or ritualistic. Rather, [they are] merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Id. at 1482 (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978)). In a case requiring discriminatory animus, the three-step procedure is merely one method to adduce evidence relevant to the central question of intentional discrimination. Once the case has been fully tried, the court thus should not narrowly focus on a party’s performance at any one stage. Each separate stage merges into the ultimate question of whether the plaintiff has established sufficiently a case of intentional discrimination. As the United States Court of Appeals for the Eleventh Circuit recently stated in an age discrimination suit: [W]hen the parties have developed their full proof it is unnecessary to analyze the evidence according to the “ebb and flow of shifting burdens” of proof under McDonnell-Douglas.... At that point, the trier of fact must determine whether plaintiff has met the ultimate burden of showing that the employer intentionally discriminated against him in violation of [the statute]. Krieg v. Paul Revere Life Insurance Co., 718 F.2d 998, 999 (11th Cir.1983) (quoting Smith v. Farah Manufacturing Co., 650 F.2d 64, 68 (5th Cir.1981)). Because of the posture of this case, our task is straight-forward: we need only ask whether the evidence, in the light most favorable to Carter," }, { "docid": "7757720", "title": "", "text": "relief was a victim of the employer’s discriminatory policy. Its burden is to establish a prima facie case that such a policy existed. The burden then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the Government’s proof is either inaccurate or insignificant.” Teamsters, 431 U.S. at 360, 97 S.Ct. 1843. This burden shifting is not “intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)). Ultimately, where a plaintiff meets its burden of production and the defendant articulates a legitimate, non-discriminatory reason for its behavior, all presumptions drop from the analysis and the fact-finder simply decides “whether [by a preponderance of the evidence] the defendant intentionally discriminated” on the basis of sex. Aikens, 460 U.S. at 715, 103 S.Ct. 1478; Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-12, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (“If, on the other hand, the defendant has succeeded in carrying its burden of production, the McDonnell Douglas framework — with its presumptions and burdens — is no longer relevant.”). b. Government’s Proof of Discrimination “Plaintiffs have typically depended upon two kinds of circumstantial evidence to establish the existence of a policy, pattern, or practice of intentional discrimination: (1) statistical evidence aimed at establishing the defendant’s past treatment of the protected group, and (2) testimony from protected class members detailing specific instances of discrimination.” Robinson, 267 F.3d at 158 (internal citations omitted). While most pattern-or-practice claims are proven through the use of statistics, “when there is a small number of employees, anecdotal evidence alone can suffice.” Sidor v. Reno, No. 95 Civ. 9588(KMW), 1997" } ]

[ { "docid": "2494535", "title": "", "text": "Proceed. Campbell reiterated his lawyer’s objection to his testimony. That fact and the response of the trial judge reduced any potential prejudice. Nothing in the record suggests that the jury was precluded from independently judging the merits of the case. FEDERAL INSURANCE To support the conviction of armed robbery in violation of 18 U.S.C. § 2113(a) the government had to prove that the money taken by Campbell was insured by the Federal Deposit Insurance Corporation. Campbell contends that the uncontested testimony of two bank employees that the bank was insured by the FDIC was not adequate to show that the money taken was so insured. We disagree. Evidence that the bank was federally insured was sufficient for a jury to reasonably conclude that the bank’s deposits were also federally insured. See, e. g., United States v. Phillips, 427 F.2d 1035 (9th Cir. 1970). Here the uncontradicted testimony of two bank employees was sufficient. United States v. Safley, 408 F.2d 603 (4th Cir. 1969). See also United States v. Phillips, 606 F.2d 884 (9th Cir. 1979). Affirmed." } ]

[ { "docid": "22803817", "title": "", "text": "removed from the bank premises. Q. What did you do when you reached those conclusions? Roby. ... We informed the FBI, the FDIC a bonding company and local police authorities. Q. In December 1985 were the, was the Mercantile and its subsidiaries insured by the Federal Deposit Insurance Company? Roby. Yes, ma’am. The defendant argues that this testimony, by itself, was insufficient to establish that the Annapolis Bank and Trust Company was insured by the Federal Deposit Insurance Corporation. He argues that no certificate of insurance showing that the insurance was current as of the day of the theft was introduced. To support this argument, the defendant’s brief cites United States v. Ford, 642 F.2d 77 (4th Cir.1981), cert. denied, 451 U.S. 917, 101 S.Ct. 1996, 68 L.Ed.2d 310 (1981). In that case, this Court found that a testimony from the branch manager and a certificate of insurance “satisfied the minimum requirements for establishing federal jurisdiction under the bank robbery statute ...” Id. at 78. As the government correctly notes in its brief, while a certificate of insurance was introduced in Ford, one was not introduced in United States v. Safley, 408 F.2d 603 (4th Cir.1969), cert. denied, 395 U.S. 983, 89 S.Ct. 2147, 23 L.Ed.2d 772 (1969). In Safley, this Court held that a testimony from a bank employee that the deposits “are” insured by the FDIC was sufficient evidence from which “the jury could draw the reasonable inference that the bank was insured at the time of the robbery.” Id. at 605. See also United States v. Taylor, 728 F.2d 930, 933 (7th Cir.1984) (uncontroverted testimony by bank’s vice president was sufficient); United States v. Baldwin, 644 F.2d 381, 385 (5th Cir.1981) (either the certificate of insurance or uncontradicted testimony was sufficient); United States v. Campbell, 616 F.2d 1151, 1153 (9th Cir.1980), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980) (uncontradicted testimony of two bank employees was sufficient); United States v. Williams, 592 F.2d 1277, 1281-82 (5th Cir.1979) (testimony from two bank officers was sufficient). In stating that the evidence presented, including a certificate" }, { "docid": "23652083", "title": "", "text": "to be error, see United States v. Chiantese, 546 F.2d 135 (5th Cir.), modified en banc, 560 F.2d 1244 (1977), on remand, 582 F.2d 974 (1978), cert. denied, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979), the fault lies not with the Trial Judge. It rests squarely on the shoulders of the prosecutor. The principal purpose in the long list of cases from other Circuits (see note 1, supra) is to reveal that this is a nationwide plague infecting United States Attorneys throughout the land. Hopefully the Attorney General will sense and remedy this national deficiency by directions pointing out the simple ways to prove this simple but indispensable fact. AFFIRMED. . The following digest of cases demonstrates the kind and quantum of evidence which the Circuit Courts have ruled to be sufficient proof of insurance: First Circuit: Gorman v. United States, 380 F.2d 158, 165 (1st Cir. 1967) (testimony of insurance before robbery, evidence bank still member FDIC near time of robbery and at time of trial, and no indication membership revoked); Third Circuit: United States v. McIntosh, 463 F.2d 250 (3d Cir. 1972) (uncontradicted testimony by assistant vice president and manager of bank that he was custodian of bank charter and that on date of robbery bank was member FDIC); Fourth Circuit: United States v. Wingard, 522 F.2d 796, 797 (4th Cir. 1975), cert. denied, 423 U.S. 1058, 96 S.Ct. 792, 46 L.Ed.2d 648 (1976) (dicta: “The FDIC certificate issued to a bank constitutes sufficient proof of its insured status.”); United States v. Safíey, 408 F.2d 603, 605 (4th Cir.), cert. denied, 395 U.S. 983, 89 S.Ct. 2147, 23 L.Ed.2d 772 (1969) (where a bank employee testified deposits “are” insured by corporation, and defendants did not suggest that bank was not insured, but only that the proof was insufficient, testimony could refer to insurance at time of trial or time of robbery and was sufficient); Sixth Circuit: United States v. Rowan, 518 F.2d 685, 692-93 (6th Cir. 1975), cert. denied, 423 U.S. 949, 96 S.Ct. 368, 46 L.Ed.2d 284-85 (certificate of insurance before robbery, statement by" }, { "docid": "361507", "title": "", "text": "DISCUSSION Alcantar urges three objections on appeal: (1) that 18 U.S.C. § 656 does not apply to the facts of this case, and that even if it does, the prosecution presented insufficient evidence to sustain her conviction; (2) that the district court committed reversible error by refusing her requested jury instructions; and (3) that Batson v. Kentucky requires not only that a prosecutor offer neutral explanations for excluding jurors of a defendant’s race by peremptory challenge, but also that defendants be allowed to rebut the prosecution’s explanation as pretextual. Although we find the first two contentions without merit, we agree that Alcantar had a constitutional right to rebut the prosecution’s explanation as pretextual in this instance. 1. Is 18 U.S.C. § 656 applicable to the facts of this case, and if so, was the evidence presented to the jury sufficient to sustain the jury’s conviction of Alcantar? This court reviews de novo the question whether the trial court applied the correct legal standard to the case. United States v. Nance, 666 F.2d 353, 356 (9th Cir.), cert. denied, 456 U.S. 918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1982). In evaluating a claim that the evidence was insufficient to support a jury verdict, “the relevant question is whether, 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, 2789, 61 L.Ed.2d 560 (1979) (emphasis added); see United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir.1984). In relevant part, 18 U.S.C. § 656 imposes criminal liability on an officer of a federally-insured bank who “embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank.” To establish a violation of the statute, the government must show “an intent to injure or defraud the [b]ank.” United States v. Stozek, 783 F.2d 891, 893 (9th Cir.), cert. denied, — U.S. -, 107 S.Ct. 284, 93 L.Ed. 259 (1986). Alcantar argues that 18 U.S.C. § 656 should not be" }, { "docid": "10465739", "title": "", "text": "are reviewable in light of the change in federal law pursuant to the decision of the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), subsequent to the determination of petitioner’s first Petition for Writ of Habeas Corpus. These grounds for relief are that the evidence does not support the guilty verdicts for (1) armed robbery, (2) murder in the first degree and perpetration of a robbery, (3) kidnapping, (4) abduction resulting in death, and (5) murder in the first degree. The Due Process Clause of the Fourteenth Amendment requires that a criminal conviction be based upon proof beyond a reasonable doubt as to every fact necessary to constitute the offense charged. In Re Winship, 397 U.S. 358, 363-64, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. The test to determine if a conviction is supported by substantial evidence is whether, 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. at 319, 99 S.Ct. at 2789. Under Jackson, circumstantial evidence may be sufficient to sustain a conviction, and such evidence need not remove every reasonable hypothesis except that of guilt. United States v. Vannerson, 786 F.2d 221, 225 (6th Cir.1986), citing United States v. Stone, 748 F.2d 361 (6th Cir.1984). The reviewing court must view the evidence and the inferences to be drawn therefrom in the light most favorable to the prosecution. Stacy v. Love, 679 F.2d 1209 (6th Cir.), cert. denied, 459 U.S. 1009, 103 S.Ct. 364, 74 L.Ed.2d 400 (1982), citing Fuller v. Anderson, 662 F.2d 420 (6th Cir.1981), cert. denied, 455 U.S. 1028, 102 S.Ct. 1734, 72 L.Ed.2d 150 (1982). Any conflicting inference arising from the record must be resolved in favor of the prosecution. Walker v. Engle, 703 F.2d 959, 969 (6th Cir.), cert. denied, Walker v. Marshall, 464 U.S. 962, 104 S.Ct. 396, 78 L.Ed.2d 338 (1983). It" }, { "docid": "23047990", "title": "", "text": "of a lawful Terry stop, the police discovered the defendants in possession of firearms; and since it is not contested that each defendant had suffered a prior felony conviction and was prohibited from possession of a firearm by 18 U.S.C.App. § 1202(a)(1), their convictions of that charge should be affirmed. II. Sufficiency of the Evidence We must next determine whether the evidence, exclusive of any reliance upon the communications supplied by the informant, was sufficient to sustain their convictions for the charges of conspiracy to commit federal bank robbery, attempted federal bank robbery, and the use of a firearm in the commission of a federal offense. In reviewing these issues, we inquire whether, viewing the evidence in the light most favorable to prosecution and to the verdicts, United States v. Hughes, 626 F.2d 619, 626 (9th Cir.) cert. denied, 449 U.S. 1065, 101 S.Ct. 793, 66 L.Ed.2d 611 (1980), any rational trier of fact could have found the essential elements of the crime to have been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Lester, 749 F.2d 1288, 1296 (9th Cir.1984). A. Attempt A conviction for attempt requires the government to prove (1) culpable intent, and (2) conduct constituting a substantial step toward commission of the crime that is in pursuit of that intent. United States v. Snell, 627 F.2d 186, 187 (9th Cir.1980), cert. denied, 450 U.S. 957, 101 S.Ct. 1416, 67 L.Ed.2d 382 (1981). A substantial step consists of conduct that is strongly corroborative of the firmness of a defendant’s criminal intent. United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975). Mere preparation does not constitute a substantial step. United States v. Taylor, 716 F.2d 701, 712 (9th Cir.1983). The issue then is whether the evidence presented at trial was sufficient of itself to prove intent and a substantial step toward bank robbery. The government contends that appellants’ intent to rob Bay View Federal may be inferred from the" }, { "docid": "22803818", "title": "", "text": "certificate of insurance was introduced in Ford, one was not introduced in United States v. Safley, 408 F.2d 603 (4th Cir.1969), cert. denied, 395 U.S. 983, 89 S.Ct. 2147, 23 L.Ed.2d 772 (1969). In Safley, this Court held that a testimony from a bank employee that the deposits “are” insured by the FDIC was sufficient evidence from which “the jury could draw the reasonable inference that the bank was insured at the time of the robbery.” Id. at 605. See also United States v. Taylor, 728 F.2d 930, 933 (7th Cir.1984) (uncontroverted testimony by bank’s vice president was sufficient); United States v. Baldwin, 644 F.2d 381, 385 (5th Cir.1981) (either the certificate of insurance or uncontradicted testimony was sufficient); United States v. Campbell, 616 F.2d 1151, 1153 (9th Cir.1980), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980) (uncontradicted testimony of two bank employees was sufficient); United States v. Williams, 592 F.2d 1277, 1281-82 (5th Cir.1979) (testimony from two bank officers was sufficient). In stating that the evidence presented, including a certificate of insurance, satisfied the minimum requirements in Ford, we did not mean to imply that a certificate of insurance was a sine qua non of proof of jurisdiction. Gallop also asserts that the evidence was inadequate since Roby never testified as to whether Annapolis Bank and Trust Company was a subsidiary of Mercantile. Roby, however, did testify that Mercantile-Safe Deposit and Trust Company is the lead bank for Mercantile Bank Shares Corporation and provides the auditing services for the affiliates within the holding company. He stated that Annapolis Bank and Trust Company is a member of that holding company. He also testified that Mercantile and its subsidiaries were insured by the Federal Deposit Insurance Company. When the appeals court determines the sufficiency of evidence, it should view the evidence in a light most favorable to the prosecution. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1941). Therefore, although what was presented by the government in this case is extremely meager, we believe that there was sufficient evidence from" }, { "docid": "4055495", "title": "", "text": "an essential element that must be proved to sustain a conviction under 18 U.S.C. § 2113(a) and (d). United States v. Glidden, 688 F.2d 58 (8th Cir.1982); Scruggs v. United States, 450 F.2d 359 (8th Cir.1971), cert. denied, 405 U.S. 1071, 92 S.Ct. 1521, 31 L.Ed.2d 804 (1972). Mays argues that the government failed to prove this element beyond a reasonable doubt. We do not agree. Dunnam testified that the bank was insured with the Federal Deposit Insurance Corporation (FDIC). He also identified both the FDIC certificate and the check that was used to pay for the FDIC coverage for the period during which the robbery occurred. Such evidence alone has been held to be sufficient to support the finding that the institution was federally insured. United States v. Phillips, 606 F.2d 884 (9th Cir.1979), cert. denied, 444 U.S. 1024, 100 S.Ct. 685, 62 L.Ed.2d 657 (1980); United States v. Greene, 578 F.2d 648 (5th Cir.1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1056, 59 L.Ed.2d 96 (1979). We have held that a bank officer’s testimony is sufficient to support a finding that a financial institution was federally insured. United States v. Glidden, 688 F.2d at 59. We think that the same evidentiary weight should be accorded the testimony of a bank manager. Accordingly, we conclude there was sufficient evidence to support a finding that the bank was federally insured on the date of the robbery. II. Mays contends that the district court erred in admitting the dye-stained money into evidence. He argues that although the chain of custody is not relevant when a witness positively identifies an object as the actual object about which he testifies, United States v. Derring, 592 F.2d 1003 (8th Cir.1979), such was not the case in the present action. None of the essential witnesses in the chain of custody could testify that those bills were identical to the dye-stained bills they received. The government’s evidence showed that a motel employee discovered the money while cleaning a room. She took the money to the motel’s restaurant manager, who counted the money and called the police." }, { "docid": "10844329", "title": "", "text": "“financial institution”). Ali contends that the evidence introduced, at trial is insufficient to prove this element beyond a reasonable doubt. We agree. There is sufficient evidence to support a conviction if, 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). There is no dispute here that the only evidence adduced on this point was a certificate of insurance from 1985 and the testimony of CNB loan officer Geraldine Felix. The extent of her testimony about the federally-insured status of the bank was the following exchange: Q. Now, do you know whether or not the Cupertino National Bank is insured by the Federal Deposit Insurance Corporation? A. Yes. We’re insured by the FDIC, and we’re regulated by the OCC. Q. All right. Have you ever seen the actual certificate of insurance? A. It’s in the lobby of the bank. Q. Looking at Exhibit 48, is this a fair and accurate photographic copy of the certificate of insurance that is in the lobby of the Cupertino National Bank? A. Looks like it to me. We hold that this evidence is insufficient as a matter of law to establish beyond a reasonable doubt that the bank was federally insured at the time of the offenses. The evidence that is required to establish this element is minimal. Indeed, “[a] bank employee’s ‘uncontradicted testimony of a bank’s insured status can sufficiently support the jury’s conclusion that this element was proven beyond a reasonable doubt.’ ” United States v. Hicks, 217 F.3d 1038, 1045 (9th Cir.2000) (quoting United States v. Corbin, 972 F.2d 271, 272 (9th Cir.1992)). Testimony is insufficient, however, when stated only in the present tense at trial, years after the relevant time period, because it cannot establish that the bank was insured on the date of the alleged offense. See United States v. Allen, 88 F.3d 765, 768-69 (9th Cir.1996). But a bank official’s testimony is not required, see" }, { "docid": "22933834", "title": "", "text": "their acts and interstate commerce. The elements of a Hobbs Act violation are extortion and a nexus between a defendant’s acts and interstate commerce. Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273-74, 4 L.Ed.2d 252 (1960). Because the Government bears the burden of proving each element of the crime, McGrath and Atcheson were not required to challenge the sufficiency of the Government’s evidence of a nexus between their acts and interstate commerce before the trial court. See United States v. James, 987 F.2d 648, 651-52 (9th Cir.1993) (bank robbery conviction reversed where government faded to present any evidence that bank was insured by the FDIC). This court must reverse the conviction if, reviewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found that there was a sufficient nexus between McGrath and Ateheson’s acts and interstate commerce. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A. We have held that the Government need prove that a defendant’s acts had only a de minimis effect on interstate commerce to support a Hobbs Act violation. United States v. Phillips, 577 F.2d 495, 501 (9th Cir.), cert. denied, 439 U.S. 831, 99 S.Ct. 107, 58 L.Ed.2d 125 (1978); United States v. Zemek, 634 F.2d 1159, 1173 n. 20 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3031, 69 L.Ed.2d 406 (1981). McGrath and Atcheson contend that the United States Supreme Court overruled our de minimis standard in United States v. Lopez, — U.S. -, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). We disagree. In Lopez, the Supreme Court addressed a challenge to Congress’ authority under the Commerce Clause to enact the Gun-Free School Zones Act, 18 U.S.C. § 922(q)(l)(A). — U.S. at -, 115 S.Ct. at 1626. The Court recognized three broad categories of activity that Congress may regulate pursuant to its commerce power: (1) use of channels of interstate commerce; (2) instrumentalities of interstate commerce; and (3) activities having a substantial relation to interstate commerce. Id. at -, 115 S.Ct. at 1629-30." }, { "docid": "361508", "title": "", "text": "Cir.), cert. denied, 456 U.S. 918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1982). In evaluating a claim that the evidence was insufficient to support a jury verdict, “the relevant question is whether, 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, 2789, 61 L.Ed.2d 560 (1979) (emphasis added); see United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir.1984). In relevant part, 18 U.S.C. § 656 imposes criminal liability on an officer of a federally-insured bank who “embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank.” To establish a violation of the statute, the government must show “an intent to injure or defraud the [b]ank.” United States v. Stozek, 783 F.2d 891, 893 (9th Cir.), cert. denied, — U.S. -, 107 S.Ct. 284, 93 L.Ed. 259 (1986). Alcantar argues that 18 U.S.C. § 656 should not be applied in this case because (1) her conduct resulted in no loss or real risk of loss to the bank; (2) she did not intend to harm the bank; and (3) she made an affirmative effort to insure that no harm would come to the bank. Alcantar’s contention that her transactions resulted in no loss or real risk of loss to the bank is irrelevant, for actual loss or risk of loss are not elements of the offense of embezzlement. See United States v. Duncan, 598 F.2d 839, 858 (4th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979); United States v. Landers, 576 F.2d 94, 96 (5th Cir.1978); United States v. Scheper, 520 F.2d 1355, 1358 (4th Cir.1975); United States v. Fortunato, 402 F.2d 79, 81 (2d Cir.1968), cert. denied, 394 U.S. 933, 89 S.Ct. 1205, 22 L.Ed.2d 463 (1969). That Alcantar did not intend to harm the bank or that she took affirmative steps to protect the bank does not refute her guilt for violating 18 U.S.C. § 656." }, { "docid": "4073252", "title": "", "text": "United States v. Horowitz, 756 F.2d 1400, 1406 (9th Cir.), cert. denied, — U.S. —, 106 S.Ct. 74, 88 L.Ed.2d 60 (1985). Therefore, the eyewitness testimony should not have been excluded from the assessment of the sufficiency of the evidence supporting Johnson’s conviction under § 2113(c). III. The Sufficiency of the Evidence On a motion for judgment of acquittal, a court should set aside the jury’s verdict only if, viewing the evidence in the light most favorable to the government, any rational trier of fact could not have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Mara-belles, 724 F.2d 1374, 1377 (9th Cir.1984). The government is entitled to all reasonable inferences that might be drawn from the evidence. Glosser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Beecroft, 608 F.2d 753, 756 (9th Cir.1979). The test applied by the trial court and the test applied by the appellate court when reviewing the trial court’s decision are, as a practical matter, identical. United States v. Leal, 509 F.2d 122, 125 (9th Cir.1975). Although the district court did not review the suffi ciency of the evidence supporting the jury’s verdict based on the correct interpretation of § 2113(c) discussed above, we will review the conviction under the proper legal standard because we stand in the same position as the district court for purposes of this review. In the present case, Johnson’s conviction is supported by sufficient evidence for a rational trier of fact to find the essential elements of § 2113(c) beyond a reasonable doubt. There is clear evidence that Johnson received or possessed money stolen from a federally insured bank. The evidence — and the inferences that can be fairly drawn from it — also amply support a finding that Johnson knew that the money was stolen. The prosecution introduced evidence that Johnson was at or near the bank during the robbery; that he was in the car used to" }, { "docid": "13473101", "title": "", "text": "1024, 100 S.Ct. 685, 62 L.Ed.2d 657 (1980); United States v. Murrah, 478 F.2d 762, 763-64 (5th Cir.1973). This circuit has repeatedly held a certificate of insurance, or testimony by a bank agent regarding the existence of a certificate, to be sufficient evidence, without ever questioning its admissibility. United States v. Corbin, 972 F.2d 271, 272 (9th Cir. 1992) (per curiam); United States v. Campbell, 616 F.2d 1151, 1153 (9th Cir.), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980); Phillips, 606 F.2d at 887; United States v. Jackson, 430 F.2d 1113, 1115-16 (9th Cir.1970); United States v. Phillips, 427 F.2d 1035, 1037 (9th Cir.), cert. denied, 400 U.S. 867, 91 S.Ct. 108, 27 L.Ed.2d 106 (1970). Two immediate explanations for this omission come to mind: such a challenge has never been seriously raised because the cer-tifícate is (1) obviously not hearsay, or (2) plainly falls within a recognized hearsay exception. While this circuit has never ruled on either issue, the conspicuous lack of discussion in the cases recommends the first explanation. A certificate of insurance is issued by the FDIC upon approval of a bank’s application to become a member. Like a written contract that memorializes the fact of a legal agreement, the certificate memorializes the fact of the legal relationship of insurer and insured. Such a written statement, which itself “affects the legal rights of the parties or is a circumstance bearing on conduct affecting their rights,” falls outside the definition of hearsay. Fed.R.Evid. 801(c) adv. com. note, reprinted in 56 F.R.D. 183, 293 (1972). Because the certificate of insurance is not hearsay, no special showing is required under the Confrontation Clause before it may be admitted in place of testimony by a representative from the FDIC. Cf. United States v. Ordonez, 737 F.2d 793, 803 (9th Cir.1984) (statement admissible under hearsay exception may still violate Confrontation Clause) and United States v. Wilmer, 799 F.2d 495, 501 (9th Cir.1986) (same), cert. denied, 481 U.S. 1004, 107 S.Ct. 1626, 95 L.Ed.2d 200 (1987), with U.S. v. Bland, 961 F.2d 123, 127 n. 3 (9th Cir.1992) (statement" }, { "docid": "15572307", "title": "", "text": "And it really is one issue. The one issue that you are going to be called upon to decide at the conclusion of the case is whether or not Charles Cornelius James ... is ... responsible for the’ robbery of the four banks.” In closing argument, the AUSA told the jury that: normally, the Government has to prove a bunch of elements: that someone robbed a bank; that someone used force; that money was taken; that the funds were federally insured. And normally the Government is required ... to show every element of that offense to show the defendant’s guilt.... And if you recall, [defense counsel] said there is only one issue. And in his argument, James’s counsel stated: When I started off talking to you ... I said to you this was a one issue case. I think [the prosecutor] said the same thing, there is only one issue here. The issue is did Charles Cornelius James rob a bank. The jury thought so, and convicted James on all three counts. II James argues that the evidence is insufficient to support his conviction since the government failed to introduce any evidence of whether the banks were insured by the FDIC. We will reverse a conviction for insufficient evidence if “ ‘reviewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Bishop, 959 F.2d 820, 829 (9th Cir.1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). A We have repeatedly held that to support a conviction of armed robbery under 18 U.S.C. § 2113(a), the government has to prove that the money taken was from a bank insured by the FDIC. See, e.g., United States v. Campbell, 616 F.2d 1151, 1153 (9th Cir.), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980); United States v. Phillips, 427 F.2d 1035, 1037 (9th Cir.) (there is no question that a proper showing of FDIC insurance is an essential" }, { "docid": "4055494", "title": "", "text": "departed the state. The government introduced dye-stained money found in a room in the Days Inn Motel in Northglenn, Colorado. Ms. Barrett testified that she and Mays had stayed with another friend in the Days Inn Motel and that they had forgotten some of the dye-stained money in a closet. She stated that the dye-stained money introduced at trial looked similar to the money stolen from the Commerce Bank. Ms. Barrett also testified regarding the robbery that she and Mays had committed at the Bellows Falls Trust Company. She testified that before that robbery she and Mays stole a four-wheel drive Toyota to drive to the bank. They carried out the robbery armed with .45 caliber automatics. They then drove away in the stolen Toyota, abandoned it for a previously hidden vehicle, and left for an isolated wooded area, where they first broke into a travel trailer, remaining there for a short time, and then broke into a hunting lodge, where they remained for two days. I. The federally insured status of a bank is an essential element that must be proved to sustain a conviction under 18 U.S.C. § 2113(a) and (d). United States v. Glidden, 688 F.2d 58 (8th Cir.1982); Scruggs v. United States, 450 F.2d 359 (8th Cir.1971), cert. denied, 405 U.S. 1071, 92 S.Ct. 1521, 31 L.Ed.2d 804 (1972). Mays argues that the government failed to prove this element beyond a reasonable doubt. We do not agree. Dunnam testified that the bank was insured with the Federal Deposit Insurance Corporation (FDIC). He also identified both the FDIC certificate and the check that was used to pay for the FDIC coverage for the period during which the robbery occurred. Such evidence alone has been held to be sufficient to support the finding that the institution was federally insured. United States v. Phillips, 606 F.2d 884 (9th Cir.1979), cert. denied, 444 U.S. 1024, 100 S.Ct. 685, 62 L.Ed.2d 657 (1980); United States v. Greene, 578 F.2d 648 (5th Cir.1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1056, 59 L.Ed.2d 96 (1979). We have held that a bank officer’s" }, { "docid": "15572308", "title": "", "text": "that the evidence is insufficient to support his conviction since the government failed to introduce any evidence of whether the banks were insured by the FDIC. We will reverse a conviction for insufficient evidence if “ ‘reviewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Bishop, 959 F.2d 820, 829 (9th Cir.1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). A We have repeatedly held that to support a conviction of armed robbery under 18 U.S.C. § 2113(a), the government has to prove that the money taken was from a bank insured by the FDIC. See, e.g., United States v. Campbell, 616 F.2d 1151, 1153 (9th Cir.), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980); United States v. Phillips, 427 F.2d 1035, 1037 (9th Cir.) (there is no question that a proper showing of FDIC insurance is an essential element of the crime), cert. denied, 400 U.S. 867, 91 S.Ct. 108, 27 L.Ed.2d 106 (1970). Here there was no evidence before the jury at all on whether the banks were insured by the FDIC. The bank employees who testifiéd did not testify as to the FDIC status of the banks, cf. Campbell, 616 F.2d at 1153 (uncontradicted testimony of bank employees sufficient to show that money taken was FDIC insured), and the stipulation concerning the “FDIC aspect” of the case was not read to the jury or received into evidence. Without any evidence on the FDIC status of the bank, no rational jury could have found beyond a reasonable doubt that the banks were insured by the FDIC. B The government, relying on United States v. Mauro, 501 F.2d 45, 48 (2d Cir.), cert. denied, 419 U.S. 969, 95 S.Ct. 235, 42 L.Ed.2d 186 (1974), argues that the names of the banks and the bank employees’ testimony indicated that the banks were large, prominent institutions, and from this the jury could have inferred that" }, { "docid": "13473099", "title": "", "text": "as to the insured status of the bank are sufficient evidence of that element of the offense to support a jury’s verdict, none of which address the question whether such evidence is hearsay. Although Bellucci is correct that the government must prove that the bank was federally insured, he is not entitled to have that element proven solely by direct evidence, i.e., by the FDIC representative who authorized the insuring of the bank’s accounts. Like any other element of the offense, it may be proven by circumstantial evidence as well as direct evidence, so long as the jury could infer from the evidence presented, beyond a reasonable doubt, that the bank was federally insured. United, States v. Brunson, 907 F.2d 117, 119 (10th Cir. 1990). There is no question the FDIC certificate of insurance was sufficient, provided it was admissible. United States v. Jackson, 430 F.2d 1113, 1115-16 (9th Cir.1970) . Both the district court and the government in this case appeared to believe that the evidentiary rules dispensing with proof of authenticity, Federal Rules of Evidence 901-903, were sufficient to permit the admission of the evidence over a hearsay objection. The proponent of a writing at trial must overcome authentication, best evidence, and hearsay objections, however. The fact that a document may be self-authenticating does not render it admissible if it is hearsay in the absence of a recognized exception to the rule against hearsay. See generally United States v. Chu Kong Yin, 935 F.2d 990, 994-1000 (9th Cir.1991) (discussing separate authentication and hearsay objections to admission of foreign public documents). While many cases have considered challenges to the sufficiency of a FDIC certificate of insurance to establish a bank’s federally-insured status, see United States v. Maner, 611 F.2d 107, 111 n. 1 (5th Cir.1980) (collecting cases), very few have considered its admissibility. Indeed, several cases have considered the converse claim: whether the evidence is sufficient in the absence of the certificate, which is considered the best evidence of the fact to be proved. E.g., United States v. Phillips, 606 F.2d 884, 887 (9th Cir.1979), cert. denied, 444 U.S." }, { "docid": "23652084", "title": "", "text": "Third Circuit: United States v. McIntosh, 463 F.2d 250 (3d Cir. 1972) (uncontradicted testimony by assistant vice president and manager of bank that he was custodian of bank charter and that on date of robbery bank was member FDIC); Fourth Circuit: United States v. Wingard, 522 F.2d 796, 797 (4th Cir. 1975), cert. denied, 423 U.S. 1058, 96 S.Ct. 792, 46 L.Ed.2d 648 (1976) (dicta: “The FDIC certificate issued to a bank constitutes sufficient proof of its insured status.”); United States v. Safíey, 408 F.2d 603, 605 (4th Cir.), cert. denied, 395 U.S. 983, 89 S.Ct. 2147, 23 L.Ed.2d 772 (1969) (where a bank employee testified deposits “are” insured by corporation, and defendants did not suggest that bank was not insured, but only that the proof was insufficient, testimony could refer to insurance at time of trial or time of robbery and was sufficient); Sixth Circuit: United States v. Rowan, 518 F.2d 685, 692-93 (6th Cir. 1975), cert. denied, 423 U.S. 949, 96 S.Ct. 368, 46 L.Ed.2d 284-85 (certificate of insurance before robbery, statement by bank manager branch insured on date of trial was sufficient, even though manager admitted he did not know of his personal knowledge if premiums paid during time of robbery); United States v. Riley, 435 F.2d 725, 726 (6th Cir. 1970) (certificate properly identified by bank auditor); United States v. Carter, 422 F.2d 519, 520 (6th Cir. 1970) (while sufficiency of evidence not in question, assistant cashier testified that bank was member FDIC and identified certificate, and certificate of insurance was introduced into evidence); Seventh Circuit: United States v. Higgans, 507 F.2d 808, 813 (7th Cir. 1974) (certificate of insurance before robbery, testimony by bank vice president that all national banks had FDIC insurance, testimony that bank operated as national bank, bank regularly paid FDIC premiums and testimony that examiners assured him bank was insured); United States v. DeTienne, 468 F.2d 151, 158-59 (7th Cir. 1972) cert. denied, 410 U.S. 911, 93 S.Ct. 974, 35 L.Ed.2d 274 (1973) (certificate dated after robbery, testimony of periodic renewal of prior certificate covering robbery time and testimony that bank" }, { "docid": "13473100", "title": "", "text": "of Evidence 901-903, were sufficient to permit the admission of the evidence over a hearsay objection. The proponent of a writing at trial must overcome authentication, best evidence, and hearsay objections, however. The fact that a document may be self-authenticating does not render it admissible if it is hearsay in the absence of a recognized exception to the rule against hearsay. See generally United States v. Chu Kong Yin, 935 F.2d 990, 994-1000 (9th Cir.1991) (discussing separate authentication and hearsay objections to admission of foreign public documents). While many cases have considered challenges to the sufficiency of a FDIC certificate of insurance to establish a bank’s federally-insured status, see United States v. Maner, 611 F.2d 107, 111 n. 1 (5th Cir.1980) (collecting cases), very few have considered its admissibility. Indeed, several cases have considered the converse claim: whether the evidence is sufficient in the absence of the certificate, which is considered the best evidence of the fact to be proved. E.g., United States v. Phillips, 606 F.2d 884, 887 (9th Cir.1979), cert. denied, 444 U.S. 1024, 100 S.Ct. 685, 62 L.Ed.2d 657 (1980); United States v. Murrah, 478 F.2d 762, 763-64 (5th Cir.1973). This circuit has repeatedly held a certificate of insurance, or testimony by a bank agent regarding the existence of a certificate, to be sufficient evidence, without ever questioning its admissibility. United States v. Corbin, 972 F.2d 271, 272 (9th Cir. 1992) (per curiam); United States v. Campbell, 616 F.2d 1151, 1153 (9th Cir.), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980); Phillips, 606 F.2d at 887; United States v. Jackson, 430 F.2d 1113, 1115-16 (9th Cir.1970); United States v. Phillips, 427 F.2d 1035, 1037 (9th Cir.), cert. denied, 400 U.S. 867, 91 S.Ct. 108, 27 L.Ed.2d 106 (1970). Two immediate explanations for this omission come to mind: such a challenge has never been seriously raised because the cer-tifícate is (1) obviously not hearsay, or (2) plainly falls within a recognized hearsay exception. While this circuit has never ruled on either issue, the conspicuous lack of discussion in the cases recommends the first explanation." }, { "docid": "4310030", "title": "", "text": "But see United States v. Ali, 266 F.3d 1242, 1244 n. 3 (9th Cir.2001) (finding testimony insufficient where time between trial and crime was too lengthy). Furthermore, courts have tended to accept any bank employee’s testimony as sufficient, regardless of whether that employee was in a managerial position. See, e.g., United States v. Bindley, 157 F.3d 1235, 1239 (10th Cir.1998). However, Ayewoh contends in this case that the district court erred in interpreting the testimony of BPPR’s record custodian as “oral testimony that the bank was insured at the time of trial.” Ayewoh, 587 F.Supp.2d at 381. Rather, Ayewoh argues that the custodian’s testimony that the certificate offered by the government “is the [FDIC] certificate issued to [BPPR] on January 1999” should be construed as nothing more than merely attesting to the document’s authenticity. We conclude that the bank employee’s testimony is ambiguous and that reasonable minds could differ as to its interpretation. On one hand, the testimony could be read as meaning “This is the [current FDIC] certificate [which was] issued to [BPPR] on January 1999.” Alternately, as Ayewoh contends, the statement could reasonably be interpreted as mere authentication testimony — that is, to mean “This is the [FDIC] certificate [which was] issued to [BPPR] on January 1999.” This Court has previously stated that, “[i]n reviewing a sufficiency-of-the-evidence claim, the Court must view the facts in the light most favorable to the Government, deferring to the jury’s verdict if the evidence can support varying interpretations, at least one of which is consistent with the defendant’s guilt.” United States v. Neal, 36 F.3d 1190, 1203 (1st Cir.1994) (emphasis added). This analysis “does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt,” but rather whether “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, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (internal citations and quotation marks omitted). Therefore, we “ought not to disturb, on the ground of insufficient evidence, a jury verdict" }, { "docid": "22805366", "title": "", "text": "armed bank robbery, and using or carrying a firearm during a crime of violence. 1. Conspiracy and Armed Bank Robbery To establish conspiracy, the government must show: (1) an agreement (2) to engage in criminal activity and (3) one or more overt acts in furtherance of the conspiracy. See 18 U.S.C. § 371. Knowledge of the objective of the conspiracy is an essential element of any conspiracy conviction. See United States v. Ladum, 141 F.3d 1328, 1341 (9th Cir.), cert. denied, 525 U.S. 898, 119 S.Ct. 225, 142 L.Ed.2d 185 (1998) and 525 U.S. 1021, 119 S.Ct. 549, 142 L.Ed.2d 457 (1998). However, the government need not prove knowledge with direct evidence; circumstantial evidence and the inferences drawn from that evidence can sustain a conspiracy conviction. See id. Once the existence of a conspiracy is established, evidence establishing beyond a reasonable doubt even a slight connection of a defendant with the conspiracy is sufficient to convict the defendant of knowing participation. See id. at 1381. To prove armed bank robbery, the government must show: (1) the defendant took money belonging to a bank, credit union, or savings and loan, (2) by using force and violence or intimidation, (3) the deposits of the institution were insured by the Federal Deposit Insurance Corporation (“FDIC”), and (4) in committing the offense, the defendant assaulted any person, or put in danger the life of any person by the use of a dangerous weapon. See 18 U.S.C. § 2113(a) & (d). Viewing the evidence in the light most favorable to sustaining the jury’s guilty verdict, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we conclude there was indeed sufficient evidence from which a reasonable jury could find Wright guilty beyond a reasonable doubt of conspiracy to commit armed bank robbery and armed bank robbery. The DNA evidence alone overwhelmingly establishes that Wright was one of the individuals who robbed the Wells Fargo Bank. 2. Using or Carrying a Firearm During a Crime of Violence The crime of using or carrying a firearm during a crime of violence requires" } ]

[ { "docid": "17016823", "title": "", "text": "sand in the effluent limitation guidelines and its order setting more lenient discharge limits for produced water and drilling wastes in Cook Inlet. This decision makes it unnecessary for us to reach the challenges to the general permit. I. Congress enacted the CWA in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). As part of this mission, the Act declared a national goal that the discharge of pollutants into the navigable waters be eliminated by 1985. 33 U.S.C. § 1251(a)(1). It was designed to achieve this goal through a system of effluent limitations guidelines (“ELGs”) and National Pollutant Discharge Elimination System (“NPDES”) permits that set technology-based discharge limits for all categories and subcategories of water pollution point sources. Although the statutory framework of the CWA has already been detailed at length by both the Supreme Court and this Court, see EPA v. Nat’l Crushed Stone Ass’n, 449 U.S. 64, 101 S.Ct. 295, 66 L.Ed.2d 268 (1980); Am. Petroleum Inst. v. EPA 661 F.2d 340 (5th Cir.1981), a brief review of ELGs and NPDES permits is helpful in understanding the present ease. ELGs are the rulemaking device prescribed by the CWA to set national effluent limitations for categories and subcategories of point sources. 33 U.S.C. § 1314(b). An “effluent limitation” is “any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance.” 33 U.S.C. § 1362(11). These limitations are technology-based rather than harm-based; that is, they reflect the capabilities of available pollution control technologies to prevent or limit different discharges rather than the impact that those discharges have on the waters. See generally E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 130-31, 97 S.Ct. 965, 976-77, 51 L.Ed.2d 204 (1977); Am. Petroleum Inst., 661 F.2d at 343-44. The CWA prescribes progressively more stringent technological standards that the EPA must use as a guidepost in" } ]

[ { "docid": "13177439", "title": "", "text": "1342. Under the NPDES, the EPA and approved states may issue permits for the discharge of pollutants that meet certain requirements outlined in § 402. Taken together, §§ 301(a) and 402 “ ‘prohibit[ ] the discharge of any pollutant from a point source into navigable waters of the United States without an NPDES permit.’ ” N.W. Envt’l Advocates v. EPA, 537 F.3d 1006, 1010 (9th Cir.2008) (quoting N. Plains Res. Council v. Fidelity Exploration & Dev. Co., 325 F.3d 1155, 1160 (9th Cir.2003)). NPDES permits “place limits on the type and quantity of pollutants that can be released into the Nation’s waters,” S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004), and must set forth “effluent limitations,” OCEF, 527 F.3d at 848. “Effluent limitations” are “restriction[s] ... on [the] quantify], rates, and concentration[ ] of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters.” CWA § 502(11). The specific effluent limitations in an NPDES permit are determined according to the more general ELGs and NSPSs, guidelines that are separately promulgated by the EPA. CWA § 304(b), 33 U.S.C. § 1314(b); CWA § 306(b), 33 U.S.C. § 1316(b); E.I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 116-17, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977). ELGs are technology-based restrictions on water pollution that apply to sources of pollution already in existence, see CWA § 304(b); NSPSs are technology-based restrictions that apply to “new sources” of pollution. CWA § 306(a)(2). “A technology-based approach to water quality focuses on the achievable level of pollutant reduction given current technology.” OCEF, 527 F.3d at 845; see also Waterkeeper Alliance, Inc. v. EPA 399 F.3d 486, 491-92 (2d Cir.2005) (stating that ELGSs and NSPSs “are technology-based, because they are established in accordance with various technological standards that the Act statutorily provides” — for example, “the best available technology economically achievable” or “the best conventional pollutant control technology” — and that these standards “vary depending upon the type of pollutant involved, the type of discharge involved, and" }, { "docid": "21099843", "title": "", "text": "of the CWA “is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” § 1251. Congress original goal was for the discharge of all pollutants into navigable waters to be eliminated by the year 1985. § 1251(a)(1). Consequently, the discharge of any pollutant is illegal unless made in compliance with the provisions of the CWA. Because numerous other courts have fully described the CWA, see E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977), it is unnecessary here to include more than an outline of the statutory structure for promulgating effluent limitations. The CWA directs EPA to formulate national effluent limitation guidelines for those entities that discharge pollutants into the navigable waters of the United States. In formulating these guidelines, the CWA directs EPA to institute progressively more stringent effluent discharge guidelines in stages. Congress intended EPA to consider numerous factors in addition to pollution reduction; “The Committee believes that there must be a reasonable relationship between costs and benefits if there is to be an effective and workable program.” Clean Water Act of 1972, Pub.L. No. 92-500, 1972 U.S.C.C.A.N. (86 Stat.) 3713. At the first stage of pollutant reduction, EPA is to determine the level of effluent reduction achievable within an industry with the implementation of the “best practicable control technology currently available” (BPT). § 1314(b)(1)(A). In general, BPT is the average of the best existing performances by industrial plants of various sizes, ages, and unit processes within the point source category or subcategory. In arriving at BPT for an industry, EPA is to consider several factors, including the total cost of the application of the technology in relation to the effluent reduction benefits to be achieved from such application. For the offshore oil and gas subcategory, BPT was to be achieved by July 1, 1977. § 1311(b)(1)(A). At the second stage, EPA is to set generally more stringent standards for toxic and conventional pollutants. For toxic pollutants, EPA is to set the standard for the “best available technology economically achievable” (BAT). BAT represents," }, { "docid": "21099842", "title": "", "text": "a process that began in 1975 with EPA’s publication of interim guidelines for the offshore oil and gas industry. Petitioners BP Exploration & Oil, Inc., American Petroleum Institute, Conoco Inc., Marathon Oil Co., and Svedala, Inc. (hereinafter referred to as “Industry petitioners”), contend that the effluent standards are too stringent. Generally, Industry petitioners allege that the Environmental Protection Agency (EPA) violated the CWA by (1) setting an unreasonable standard for the discharge of oil and grease in effluent discharges, (2) prohibiting the discharge of certain drilling wastes within three miles of shore, and (3) banning the discharge of contaminated sand. At the other end of the spectrum, petitioner Natural Resources Defense Council, Inc. (NRDC), representing environmental interests, contends that EPA violated the CWA by promulgating effluent standards that are generally too lenient. In short, NRDC alleges that EPA (1) illegally rejected zero discharge of drilling wastes, (2) violated the Act by failing to regulate radioactive pollutants in discharged water, and (3) should have required reinjection of polluted water. A. The Clean Water Act The objective of the CWA “is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” § 1251. Congress original goal was for the discharge of all pollutants into navigable waters to be eliminated by the year 1985. § 1251(a)(1). Consequently, the discharge of any pollutant is illegal unless made in compliance with the provisions of the CWA. Because numerous other courts have fully described the CWA, see E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977), it is unnecessary here to include more than an outline of the statutory structure for promulgating effluent limitations. The CWA directs EPA to formulate national effluent limitation guidelines for those entities that discharge pollutants into the navigable waters of the United States. In formulating these guidelines, the CWA directs EPA to institute progressively more stringent effluent discharge guidelines in stages. Congress intended EPA to consider numerous factors in addition to pollution reduction; “The Committee believes that there must be a reasonable relationship between costs and benefits" }, { "docid": "17875008", "title": "", "text": "is to point to its policy preference for quality-based controls rather than generally applicable limitations, at least for pollutants that do not have a uniform impact on receiving bodies of water. See A.R. at 113-14,123; see also EPA Br. at 19-20. The EPA may yet have good reasons for refusing to regulate NOD via generally-applicable effluent limitations on POTWs, but a policy preference for quality-based measures over generally-applicable technology-based measures is not one of them. Such a preference improperly construes the CWA. Before 1972, the stated purpose of the Federal Water Pollution Control Act (“FWPCA”) was “to enhance the quality and value of our water resources and to establish a national policy for the prevention, control, and abatement of water pollution.” 33 U.S.C. § 1151(a) (1970) (superseded by Pub.L. 92-500, § 2, 88 Stat. 816 (1972)). To this end, the pre-1972 legislation employed ambient water quality standards as the primary mechanism for water pollution control. See EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 202, 96 S.Ct. 2022, 2023, 48 L.Ed.2d 578 (1976). The 1972 Amendments to the FWPCA, popularly known as the Clean Water Act, deliberately ended this approach. Prompted by the Senate Committee on Public Works’ review of the FWPCA program, and its conclusion that “the national effort to abate and control water pollution has been inadequate in every vital respect,” S.Rep. 92-414, at 7, reprinted in 1972 U.S.C.C.A.N. 3668, 3674, Congress declared as the new national goal of the program that “the discharge of pollutants into the navigable waters be eliminated,” 33 U.S.C. § 1251(a)(1). Consistent with this end, the CWA substituted technology-based, generally-applicable effluent limitations for water quality-based regulatory approaches. See State Water Resources Control Bd., 426 U.S. at 204, 96 S.Ct. at 2024 (“Such direct restrictions on discharges facilitate enforcement by making it unnecessary to work backward from an overpolluted body of water to determine which point sources are responsible and which must be abated.”). The leg islative history of the Act is replete with references to the need for this substitution. The EPA’s denial of Maier’s petition effects an" }, { "docid": "17874955", "title": "", "text": "SEYMOUR, Chief Judge. Appellants Peter Maier, the Intermountain Water Alliance, the Atlantic States Legal Foundation, the Utah Wilderness Association, and Kay Henry petitioned the Environmental Protection Agency (EPA) to initiate rulemaking under the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387. Mr. Maier contended that recent developments in municipal wastewater technology have rendered the EPA’s regulations for secondary treatment inadequate, and therefore the EPA must promulgate new standards. The EPA denied the petition, and Mr. Maier appealed to this court. We affirm. I. A. We start with an overview of the relevant statutory scheme. The CWA aims “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” by reducing and eventually eliminating the discharge of pollutants. 33 U.S.C. § 1251(a), (a)(1). “[T]he basic structure of the [CWA] ... translates Congress’ broad goal of eliminating ‘the discharge of pollutants into the navigable waters’ into specific requirements that must be met by individual point sources.” EPA v. National Crushed Stone Ass’n, 449 U.S. 64, 69, 101 S.Ct. 295, 300, 66 L.Ed.2d 268 (1980) (quoting 33 U.S.C. § 1251(a)(1)) (citations omitted). A “point source” is defined as “any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). The CWA prohibits the discharge of any pollutant from a point source unless that discharge complies with the CWA’s requirements. 33 U.S.C. § 1311(a). Compliance can be achieved by obtaining a National Pollutant Discharge Elimination System (NPDES) permit, pursuant to 33 U.S.C. § 1342, which establishes technology-based controls and ensures compliance with state or federal water quality standards. 33 U.S.C. § 1311(b)(1)(C). These permits generally contain quantitative limits on the amounts of specified pollutants that may be discharged. See generally Oklahoma v. EPA, 908 F.2d 595, 597-98 (10th Cir.1990), rev’d on other grounds sub nom., Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). The CWA mandates varying standards of technology-based treatment as the minimum requirement for different categories of point sources. 33 U.S.C. §§ 1311, 1314. Under section 1311, “effluent limitations for point sources, other than publicly owned" }, { "docid": "21566618", "title": "", "text": "permit would not violate Oklahoma’s WQS; that EPA did not properly consider the Wild and Scenic Rivers Act, 16 U.S.C. . §§ 1271-1287 (WSRA), as it applies to the upstream portions of the Illinois River; and that EPA erred in denying review of certain issues and in refusing to reopen the evidentiary hearing. The State of Arkansas, Arkansas Department of Pollution Control Ecology, City of Fayetteville, and Beaver Water District (the “Arkansas parties,” or Arkansas) challenge EPA’s authority to require an Arkansas discharger to comply with Oklahoma water quality standards. BACKGROUND The cornerstone of the Clean Water Act, 33 U.S.C. §§ 1251-1387, is its prohibition of any discharge of pollutants to navigable waters except as permitted by the Act. 33 U.S.C. § 1311(a). Section 101 of the Act, 33 U.S.C. § 1251(a)(1), states that “it is the national goal that the discharge of pollutants into navigable waters be eliminated by 1985.” “Discharge of a pollutant” is defined expansively as “any addition of any pollutant to navigable waters from any point source.” § 1362(12)(A). “Pollutant” is also broadly defined; it includes “dredged spoil, solid waste, ... sewage, garbage, sewage sludge, ... chemical wastes, ... rock, sand, ... and industrial, municipal, and agricultural waste.” § 1362(6). “Point source” encompasses “any discernible, confined and discrete conveyance, including ... any pipe, ditch, channel, tunnel, [or] conduit ... from which pollutants are or may be discharged.” § 1362(14). “Navigable waters” means “the waters of the United States.” § 1367(7). Discharges of pollutants must comply with limitations established in and pursuant to the Act. “Effluent limitations,” i.e., limits on “quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources,” § 1362(11), may be water quality-based, §§ 1312, 1313, or technology-based, §§ 1311(b), 1314(b). EPA is required to establish water-quality based restrictions whenever technology-based limits are inadequate to protect a particular body of water. § 1312(a). The CWA sets minimum requirements for water pollution control; states may devise more stringent measures. § 1370. State standards, once approved by EPA, become the water quality standards for the applicable waters of the" }, { "docid": "9997403", "title": "", "text": "1311(a), 1342, 1362. By way of very brief overview, the Act formally prohibits the “discharge of a pollutant” by “any person” from any “point source” to navigable waters except when authorized by a permit issued under the National Pollutant Discharge Elimination System (“NPDES”). See 33 U.S.C. §§ 1311(a), 1342. This means, as a practical matter, that the EPA primarily advances the Act’s objectives — including the ambitious goal that water pollution be not only reduced, but eliminated, see 33 U.S.C. § 1251(a)(1) — through the use of NPDES permits that, while authorizing some water pollution, place important restrictions on the quality and character of that licit pollution. NPDES permits are issued either by the EPA, itself, or by the states in a federally approved permitting system. See 33 U.S.C. § 1342. Regardless of the issuer, every NPDES permit is statutorily required to set forth, at the very least, “effluent limitations,” that is, certain “restriction[s] ... on [the] quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters.” S. Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 124 S.Ct. 1537, 1541, 158 L.Ed.2d 264 (2004) (“Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation’s waters.”). The specific effluent limitations contained in each individual NPDES permit are dictated by the terms of more general “effluent limitation guidelines” (“ELGs”), which are separately promulgated by the EPA. Cf. EPA v. California, ex rel. State Water Res. Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976) (“An NPDES permit serves to transform generally applicable effluent limitations and other standards including those based on water quality into the obligations ... of the individual discharger.”). ELGs, and the effluent limitations established in accordance with them, are technology-based restrictions ' on water pollution. They are technology-based, because they are established in accordance' with various technological standards that the Act statutorily provides and that, pursuant to the Act, vary depending upon the type of" }, { "docid": "18274441", "title": "", "text": "Inc., 299 F.3d 1007, 1016 (9th Cir.2002) (noting that, in 1972, “Congress passed the Clean Water Act amendments, 33 U.S.C. §§ 1251-1387, to respond to environmental degradation of the nation’s waters.”); Natural Resources Def. Council (“NRDC”) v. EPA, 822 F.2d 104, 109 (D.C.Cir.1987) (citing 33 U.S.C. § 1311(a)). In substantial part, EPIC alleges that PALCO has used a variety of “point sources,” see 33 U.S.C. § 1362(14), to discharge pollutants without first securing necessary NPDES permits. Absent such permits, EPIC claims, PAL-CO’s system conflicts with defendants’ CWA obligations. II. Statutory and Regulatory Background With the goal of “restoring] and maintaining] the chemical, physical, and biological integrity of the Nation’s waters,” Congress enacted the CWA in 1972. 33 U.S.C. § 1251(a) (originally codified as the Federal Water Pollution Control Act, 62 Stat. 1155); see Association to Protect Hammersley, 299 F.3d at 1016; Pronsolino v. Nastri, 291 F.3d 1123, 1126 (9th Cir.2002) (observing that prior federal water pollution regulation “had proven ineffective”), cert. denied, 539 U.S. 926, 123 S.Ct. 2573, 156 L.Ed.2d 602 (2003). Built on a “fundamental premise” that the unauthorized “discharge of any pollutant by any person shall be unlawful,” NRDC v. EPA 822 F.2d at 109 (citing 33 U.S.C. § 1311(a)), the CWA “establishes a comprehensive statutory system for controlling water pollution.” Association to Protect Hammersley, 299 F.3d at 1009 (citation and internal quotation marks omitted). This broad statutory scheme includes, inter alia, a National Pollutant Discharge Elimination System (NPDES) for regulation of pollutant discharges into the waters of the United States. See 33 U.S.C. §§ 1311(a), 1342(a). Under the NPDES, permits may be issued by EPA or by states that have been authorized by EPA to act as NPDES permitting authorities. See 33 U.S.C. § 1342(a)-(b); see also Environmental Def. Ctr., Inc., 344 F.3d at 841 (holding that pollution dischargers must comply with “technology-based pollution limitations (generally according to the ‘best available technology economically achievable,’ or ‘BAT’ standard).”); NRDC v. EPA 822 F.2d at 110 (noting that, when necessary, water quality-based standards may supplement technology standards). California has been so authorized. Not all pollutants or pollution sources fall" }, { "docid": "11535194", "title": "", "text": "pollutants except as authorized by the Environmental Protection Agency. 33 U.S.C. § 1311(a). The Act requires that the EPA promulgate “effluent limitation” standards for numerous categories of industrial polluters. These standards are principally technology-based, limiting discharges to levels achievable by use of “the best practicable control technology currently available.” 33 U.S.C. § 1311(b)(1)(A). Water quality standards are used as a supplementary basis for effluent limitations, so that numerous dischargers, despite their individual compliance with technology-based limitations, can be regulated to prevent water quality from falling below acceptable levels. Environmental Protection Agency v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205 n. 12, 96 S.Ct. 2022, 2025 n. 12, 48 L.Ed.2d 578 (1976). Under the National Pollutant Discharge Elimination System, 33 U.S.C. § 1342, the EPA issues permits to individual dischargers. Under the permit, the generally applicable effluent limitations and other standards become the obligation of the individual discharger. Environmental Protection Agency v. California, 426 U.S. at 205, 96 S.Ct. at 2025. The Act requires that each discharger holding a NPDES permit monitor and report on its compliance with its permit. Each discharger must install, use, and maintain monitoring equipment and must sample its effluents. 33 U.S.C. § 1318(a)(4)(A). The discharger must report the results of its self-monitoring to the EPA and the state agency that issues the permit. These self-monitoring reports are to be submitted at intervals specified in the permit. 40 C.F.R. § 122.41(1)(4). In accordance with the Act’s policy “to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution,” 33 U.S.C. § 1251(b), states that follow the procedures outlined in the Act are authorized to issue NPDES permits to discharging entities within the state. 33 U.S.C. §§ 1251(b), 1342(b). All states must comply with the Act and with the EPA’s regulations, but a state may adopt its own effluent limitations and standards so long as they are not less stringent than the EPA’s correlative limitations and standards. 33 U.S.C. § 1370. Before a state issues any NPDES permit, it must transmit a copy of the proposed" }, { "docid": "9997404", "title": "", "text": "navigable waters.” S. Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 124 S.Ct. 1537, 1541, 158 L.Ed.2d 264 (2004) (“Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation’s waters.”). The specific effluent limitations contained in each individual NPDES permit are dictated by the terms of more general “effluent limitation guidelines” (“ELGs”), which are separately promulgated by the EPA. Cf. EPA v. California, ex rel. State Water Res. Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976) (“An NPDES permit serves to transform generally applicable effluent limitations and other standards including those based on water quality into the obligations ... of the individual discharger.”). ELGs, and the effluent limitations established in accordance with them, are technology-based restrictions ' on water pollution. They are technology-based, because they are established in accordance' with various technological standards that the Act statutorily provides and that, pursuant to the Act, vary depending upon the type of pollutant involved, the type of discharge involved, and whether the point source in question is new or already existing. We will discuss these with greater detail below. For now, we note simply that the technology standards for already existing point sources include (1) the best available technology economically achievable, see 33 U.S.C. § 1311(b)(2)(A); (2) the best conventional pollutant control technology, see 33 U.S.C. § 1314(b)(2)(A); and (3) the best practiea- ble control technology currently available, see 33 U.S.C. § 1314(b)(1)(A). The technology standard for new point sources, which is commonly referred to as a new source performance standard, is based on the best available demonstrated control technology, see 33 U.S.C. § 1316. We also note that where effluent limitations prove insufficient to attain or maintain certain water quality standards, the Act requires NPDES permits to include additional water quality based effluent limitations. See 33 U.S.C. §§ 1311(b)(1), 1312(a). Overall, we hope to make clear that the NPDES permit is critical to the successful implementation of the Act because — by setting forth technology-based effluent" }, { "docid": "18931588", "title": "", "text": "EPA’s Duty to Establish Total Maximum Daily Loads for New York’s Waters The Clean Water Act provides for citizen suits against the Administrator of the Environmental Protection Agency “where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator.” 33 U.S.C. § 1365(a)(2). Plaintiffs argue that New York had a duty to promulgate pollution limits, called Total Maximum Daily Loads (“TMDLs”), for various polluted waters and submit them to the EPA for review; that New York failed to fulfill its duty; and that the EPA thus had a duty to establish TMDLs for New York. The Court will first summarize the statutory scheme, then consider whether a constructive submission has occurred, concluding that triable issues of fact exist, and finally will consider whether the action regarding TMDLs is time-barred. A. Summary of the Statutory Scheme The Clean Water Act places “primary reliance for developing water quality standards on the states.” Scott v. City of Hammond, 741 F.2d 992, 994 (7th Cir.1984). Water pollution is controlled according to two approaches: the effluent-limitation approach and the water-quality-based approach. The effluent limitation approach focuses on regulating, through the issuance of permits and required technology-based abatement methods, the amount of pollutants discharged by a pollution source. The water-quality-based approach focuses on establishing a quality standard for a body of water, and then regulating the various sources of pollution as needed to meet that standard. In order to facilitate the reduction of water pollution, states are directed to develop water quality standards, which include both a pollution standard and a designation of the uses of a waterway. See 33 U.S.C. § 1313(a). “Timely adoption by states of water quality standards is enforced by withholding of grant funds.” Scott, 741 F.2d at 995 n. 7 (citing 33 U.S.C. § 1313a). It may be that the effluent-limitation approach will meet the water quality standard, in that technology-based reduction of the discharge of pollutants into the particular body of water will ensure that the level of pollution in the water will be lower than" }, { "docid": "21566653", "title": "", "text": "F.Supp. 1390 that a North Carolina discharge permit must require compliance with an applicable Tennessee WQS). 4. The Statutory and Regulatory Framework The erroneous interpretation of Ouel-lette, which Arkansas advocates, runs aground when the Clean Water Act is considered as a whole. The Act contains several mechanisms for ensuring that minimum water quality and pollution criteria will apply to all navigable waters of the United States; for example, prohibiting the discharge of pollutants except pursuant to a permit, 33 U.S.C. §§ 1311, 1342; requiring EPA to establish effluent limitations for point source discharges, §§ 1311-1312; providing for EPA’s approval of water quality standards, § 1313, and state permit programs, § 1342(b); and establishing minimum procedural requirements for state permit programs, § 1314(i). As discussed above, however, states are not precluded from imposing pollution limitations more stringent than those promulgated by EPA. 33 U.S.C. § 1370; 40 C.F.R. § 122.1(f); Milwaukee v. Illinois, 451 U.S. at 327-28, 101 S.Ct. at 1797-98. Moreover, the CWA requires the application of best available control technology or best practicable treatment to discharges of pollutants, 33 U.S.C. § 1311, and the Act’s legislative history reveals that Congress intended the CWA to be “technology-forcing.” S.Rep. No. 414, reprinted in 1972 U.S.Code Cong. & Admin.News 3668, 3709 (Act contains a “mandate to press technology and economics” to achieve practicable and attainable levels of effluent reduction; thus, “increasingly tougher controls on industry” will be required); see also Natural Resources Defense Council, Inc. v. EPA, 822 F.2d 104, 123-24 (D.C.Cir.1987). Any standard or limitation adopted by a state and approved by EPA becomes the “water quality standard for the applicable waters of that State,” and thus is federally enforceable. 33 U.S.C. § 1313(c)(3). See also §§ 1319, 1342; S.Rep. 414, reprinted in 1972 U.S. Code Cong. & Admin.News 3668, 3672; Order on Petitions for Review, R., A-28, at 11-12 n. 13. a. 33 U.S.C. § mi EPA finds support for its action here in certain of the foregoing sections. In addition, we consider 33 U.S.C. § 1341 particularly persuasive. It provides that no NPDES permit may be granted until a" }, { "docid": "13325923", "title": "", "text": "Nat. Res. Defense Council v. EPA, 915 F.2d 1314, 1317 (9th Cir.1990). . Texas Oil & Gas Ass’n v. EPA, 161 F.3d 923, 927 (5th Cir.1998). . Nat. Res. Defense Council, 915 F.2d at 1317 (citing 33 U.S.C. §§ 1312, 1313). . Id. . 33 U.S.C. § 1362(11). . Id. at § 1362(14). . For new sources of pollution, a similar system of regulations applies. See id. at § 1316. Because Petitioners do not directly challenge these \"new source performance standards” (\"NSPS”), discussing their regulations is beyond the scope of this opinion. . Id. at § 1314(b)(3). . Id. at § 1314(b)(1)(A). . Id. at § 1314(b)(2)(A). In this particular subsection, Congress used the term \"best control measures and practices achievable.” From the remainder of the statute, it appears that this provision is meant to read \"best available technology economically achievable”-or at least means the same thing. Both parties' briefs reflect this interpretation. . Id. at § 1314(b)(4)(A). . Id. at §§ 1314(b)(1)(B); 1314(b)(2)(B); 1314(b)(4)(B). . Id. at § 1311(b). Dischargers with point sources requiring best practicable control technology were to achieve the goals by July 1, 1977. Id. at § 1311(b)(1)(A). March 31, 1989 was the applicable date for point sources requiring the best conventional pollutant control technology, id. at § 1311(b)(2)(E), and best available technology economically achievable, id. at§§ 1311(b)(2)(C)-(D), (F). . Id. at § 1311(b)(2)(A). . Id. at § 1311(b)(2)(E). . See, e.g., Am. Paper Inst., Inc. v. EPA, 996 F.2d 346, 350 (D.C.Cir.1993). . 33U.S.C. § 1311(a). . Id. at § 1342(a). . Under the CWA, \"discharge” refers to any addition of any pollutant to navigable waters from any point source. 33 U.S.C. § 1362(12) & (16). \"Discharger” and \"polluter” are therefore used interchangeably. . In addition to these technology-based regulations, the CWA also implements water-quality-based regulations. These latter regulations are based upon the desired uses and condition of individual waterways. The water-quality-based requirements were intended by Congress to supplement the effluent limitations. Through the water quality standards, EPA may place additional obligations on a point source to prevent the water from falling below acceptable standards." }, { "docid": "9878082", "title": "", "text": "the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (Supp. V 1987). Under the Act, the EPA must im pose and enforce technology-based effluent limitations and standards through individual National Pollutant Discharge Elimination System (“NPDES”) permits. See 33 U.S.C. § 1342 (1982 & Supp. V 1987). These permits contain specific terms and conditions, as well as numerical discharge limits, which govern the activities of pollutant dischargers. Through the Clean Water Act, Congress has directed the EPA to incorporate into the permits increasingly stringent technology-based effluent limitations. Congress specified a number of means for the EPA to impose and to enforce these limitations in NPDES permits. For instance, it requires the Agency to establish effluent limitations requiring dischargers to use the “best practicable control technology currently available” (“BPT”) within an industry. 33 U.S.C. §§ 1311(b)(1)(A), 1314(b)(1)(A) (1982). These limits are to represent “the average of the best” treatment technology performance in an industrial category. See EPA v. National Crushed Stone Ass’n, 449 U.S. 64, 76 n. 15, 101 S.Ct. 295, 303 n. 15, 66 L.Ed.2d 268 (1980). The EPA is further required to promulgate limitations both for discharge of toxic pollutants by mandating that an industry use the “best available technology economically achievable” (“BAT”) and for discharge of conventional pollutants by requiring the use of the “best conventional pollution control technology” (“BCT”); the congressionally imposed deadline for promulgation of these limitations was March 31, 1989. 33 U.S.C. §§ 1311(b)(2)(A), (C), (D), and (E); 1314(a)(4), (b)(2), and (b)(4) (1982 & Supp. V 1987). Whether a pollutant should be considered toxic has been left to the discretion of the EPA. See 33 U.S.C. § 1317(a)(1) (1982); see also 40 C.F.R. § 401.15 (1989) (designating, pursuant to 33 U.S.C. § 1317(a)(1), 65 toxic pollutants). In addition, new pollution sources in an industry must meet a separate set of standards called new-source performance standards (“NSPS”). 33 U.S.C. § 1316 (1982). These standards limit the discharge of pollutants by new sources based on the “best available demonstrated control technology” (“BDT”). Id. Finally, the" }, { "docid": "23026769", "title": "", "text": "No. 89-234, 79 Stat. 903. But the great difficulty in establishing reliable, precise limitations on pollution based solely on water quality targets led to substantial enforcement problems. See EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 202-03, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). In fact, the use of water quality standards as a control mechanism was found to be “inadequate in every vital respect.” S. Rep. No. 92-414, at 7 (1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3674. The Clean Water Act therefore shifted the focus of federal enforcement efforts from water quality standards to direct limitations on the discharge of pollutants— i.e., “effluent limitations.” See 33 U.S.C. § 1311; Natural Resources Defense Council, Inc. v. EPA, 915 F.2d 1314, 1316 (9th Cir.1990). Whereas the previous scheme required proof of actual injury to a body of water to establish a violation, Congress now instituted a regime of strict liability for illegal pollution discharges. See, e.g., United States v. Winchester Mun. Utils., 944 F.2d 301, 304 (6th Cir.1991). Government regulators were therefore freed from the “need [to] search for a precise link between pollution and water quality” in enforcing pollution controls. S. Rep. No. 92-414, at 8, reprinted in 1972 U.S.C.C.A.N. at 3675. Rather, they could simply determine whether a company was emptying more pollutants into the water than the Act allowed in order to detect a violation of the statute. The centerpiece of the Clean Water Act is section 301(a). This section provides: “Except as in compliance with this section and [other sections of the Act], the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). And in section 402 of the Act, Congress established the National Pollutant Discharge Elimination System (NPDES), which authorizes the issuance of permits for the discharge of limited amounts of effluent. Id. § 1342. The availability of such permits simply recognizes “that pollution continues because of technological limits, not because of any inherent rights to use the nation’s waterways for the purpose of disposing of wastes.” Natural Resources Defense Council, Inc. v. Costle, 568 F.2d" }, { "docid": "13325894", "title": "", "text": "tragedy of the commons where the aggregate impact of polluters’ activities-despite compliance with the technology-based regulations-causes unacceptable pollution. When this happens, the water-quality-based regulations ratchet up the pollution control required of individual polluters. The technology-driven regulations are complex, and take the form of “effluent limitation guidelines.” An “effluent limitation” is “any restriction [including schedules of compliance] established ... on the quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into ... water[ ].” The CWA requires the EPA to issue effluent limitation guidelines for various types of “point sources.” A “point source” is “any discernible, confined and discrete conveyance ... [such as a pipe, ditch, or channel] from which pollutants are or may be discharged.” The EPA’s effluent limitation guidelines are technology-based regulations. They require polluters to adopt certain technologies aimed at reducing pollution. Section 304 of the CWA charges the EPA with duties related to setting effluent limitation guidelines for existing sources of pollution. Under § 304(b)(3), the EPA must identify the specific control measures and practices available to the various categories and classes of point sources. The EPA must then identify, in terms of the amount of pollutants, the pollution reduction (or, in Clean Water Act jargon, “effluent reduction”) attainable through application of the three different levels of technology-best practicable control technology (“BPT”), best available technology economically achievable (“BAT”), and best conventional pollutant control technology (“BCT”). It must also identify the factors it will consider when deciding which control measures and practices apply to each of the various classes and categories of point sources. Beyond these § 304 requirements, § 301 of the CWA requires that the effluent limitations attainable by the various levels of technology “shall be achieved” by various dates, all at least fifteen years in the past. More specifically, point sources discharging toxic and nonconventional pollutants must apply the best available technology economically achievable (“BAT”) to meet the BAT effluent limitations. Similarly, point sources discharging conventional pollutants must apply the best conventional pollutant control technology (“BCT”) to meet the BCT effluent limitations. These limitations, however, are not" }, { "docid": "7661098", "title": "", "text": "provision before us. Prior to 1972, the Clean Water Act relied on “water quality standards.” If a point source’s discharge reduced the quality of a body of water below a certain standard, that polluter would be liable. This approach was impractical, however, because it was very difficult to prove that a particular polluter was responsible for causing the decrease in water quality. In place of this, the 1972 amendments instruct the EPA to regulate the discharge of pollutants from their source by setting “effluent limitations” based on the leading technology and regardless of the receiving water’s quality. See generally Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1041-42 (D.C.Cir.1978); Bethlehem Steel Corp. v. EPA 538 F.2d 513, 514-15 (2d Cir.1976); Hooker Chems. & Plastics Corp. v. Train, 537 F.2d 620, 623-24 (2d Cir.1976). Those limitations were to become more stringent over time. Beginning in 1977, the EPA was to set “effluent limitations” for existing sources based on “the best practicable control technology currently available.” CWA § 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A). By 1989, existing source effluent limitations were to be based on the “best available technology economically achievable,” CWA § 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A), which is a “[s]tiffer restriction[ ]” than “best practicable- ... technology,” Hooker, 537 F.2d at 623; accord Weyerhaeuser, 590 F.2d at 1019. Section 306, which applies to new sources, requires the EPA to establish “standards of performance” based on the “best avaib able demonstrated control technology,” tougher standards that reflect the “greatest degree of effluent reduction.” CWA § 306(a)(1), 33 U.S.C. § 1316(a)(1); see Natural Res. Def. Council, Inc. v. U.S. EPA, 822 F.2d 104, 109-10 (D.C.Cir.1987). None of these standards “prescribed a specific design or process in order to meet the requirements of best ... technology^] but instead [the EPA] shall set out effluent limitations which are consistent with such ... technology,” leaving to each facility the burden of meeting those limitations using whatever methods and devices it prefers. H.R.Rep. No. 92-911, at 108 (1972), reprinted in 1 Comm, on Public Works, 93d Cong., A Legislative History of the Water Pollution Control Act Amendments of" }, { "docid": "11535193", "title": "", "text": "the effectiveness of the Federal Water Pollution Control Act, sampling errors should not be recognized as valid excuses for asserted exceedances of NPDES permits. This case raises significant questions about the operation of the Federal Water Pollution Control Act. In particular, we must consider the issue of the states’ power under the Act to impose more stringent water regulations than those imposed by the Environmental Protection Agency. We must also consider the level to which the viability of a self-monitoring system such as the NPDES requires courts to hold permittees accountable for all errors in reporting. BACKGROUND I. Statutory Scheme The objective of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376 (1986), is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). As amended in 1972, the Act declares that “it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.” 33 U.S.C. § 125(a)(1). In furtherance of these goals, the Act prohibits the discharge of all pollutants except as authorized by the Environmental Protection Agency. 33 U.S.C. § 1311(a). The Act requires that the EPA promulgate “effluent limitation” standards for numerous categories of industrial polluters. These standards are principally technology-based, limiting discharges to levels achievable by use of “the best practicable control technology currently available.” 33 U.S.C. § 1311(b)(1)(A). Water quality standards are used as a supplementary basis for effluent limitations, so that numerous dischargers, despite their individual compliance with technology-based limitations, can be regulated to prevent water quality from falling below acceptable levels. Environmental Protection Agency v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205 n. 12, 96 S.Ct. 2022, 2025 n. 12, 48 L.Ed.2d 578 (1976). Under the National Pollutant Discharge Elimination System, 33 U.S.C. § 1342, the EPA issues permits to individual dischargers. Under the permit, the generally applicable effluent limitations and other standards become the obligation of the individual discharger. Environmental Protection Agency v. California, 426 U.S. at 205, 96 S.Ct. at 2025. The Act requires that each discharger holding a NPDES permit" }, { "docid": "13325892", "title": "", "text": "GWIN, D. J., delivered the opinion of the court, in which CLAY, J., joined. SUHRHEINRICH, J. (pp. 985-89), delivered a separate opinion concurring in part and dissenting in part. GWIN, District Judge. Here, a Kentucky nonprofit corporation (the Kentucky Resources Council) and a national organization that advocates clean-living conditions for residents of the nation’s coalfields (the Citizens Coal Council) petition this Court to invalidate a final rule that the Environmental Protection Agency promulgated on January 23, 2002 (“Final Rule”). We refer to the Kentucky Resources Council and the Citizens Coal Council collectively as “Petitioners” and the Environmental Protection Agency as “EPA.” The Final Rule applies to once-abandoned coal mines that operators later reopen and remine. In addition, the Final Rule applies to coal mines in the arid regions of the Western interior states. Petitioners argue that the EPA’s Final Rule exceeds its statutory mandate and urge this Court to strike it down. For the following reasons, we invalidate the regulations the EPA promulgated in the January 23, 2002 Final Rule, and remand. BACKGROUND The Clean Water Act (“CWA”) is an enigmatical piece of legislation. Filled with more sesquipedalian jargon than a year’s subscription to any trade journal and a byzantine system of cross references, its intricacies are virtually indecipherable. Perhaps this explains the parties’ inability to agree on seemingly any aspect of the statute or the EPA’s Final Rule. What follows is our attempt to navi gate this legislative labyrinth and to translate its environmentalese into English: The CWA seeks to restore and maintain the integrity of the nation’s water. To further the goals of restoring and maintaining clean water, the CWA includes both technology-driven limits and water-quality-based limits on pollution. The technology-based limits aim to prevent pollution by requiring polluters to install and implement various forms of technology designed to reduce the pollution discharged into the nation’s waters. On the other hand, the water quality regulations kick in once a given body of water’s pollution level exceeds the level that a state deems acceptable for the body of water’s intended use or function. They endeavor to cure an aquatic" }, { "docid": "13325893", "title": "", "text": "Water Act (“CWA”) is an enigmatical piece of legislation. Filled with more sesquipedalian jargon than a year’s subscription to any trade journal and a byzantine system of cross references, its intricacies are virtually indecipherable. Perhaps this explains the parties’ inability to agree on seemingly any aspect of the statute or the EPA’s Final Rule. What follows is our attempt to navi gate this legislative labyrinth and to translate its environmentalese into English: The CWA seeks to restore and maintain the integrity of the nation’s water. To further the goals of restoring and maintaining clean water, the CWA includes both technology-driven limits and water-quality-based limits on pollution. The technology-based limits aim to prevent pollution by requiring polluters to install and implement various forms of technology designed to reduce the pollution discharged into the nation’s waters. On the other hand, the water quality regulations kick in once a given body of water’s pollution level exceeds the level that a state deems acceptable for the body of water’s intended use or function. They endeavor to cure an aquatic tragedy of the commons where the aggregate impact of polluters’ activities-despite compliance with the technology-based regulations-causes unacceptable pollution. When this happens, the water-quality-based regulations ratchet up the pollution control required of individual polluters. The technology-driven regulations are complex, and take the form of “effluent limitation guidelines.” An “effluent limitation” is “any restriction [including schedules of compliance] established ... on the quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into ... water[ ].” The CWA requires the EPA to issue effluent limitation guidelines for various types of “point sources.” A “point source” is “any discernible, confined and discrete conveyance ... [such as a pipe, ditch, or channel] from which pollutants are or may be discharged.” The EPA’s effluent limitation guidelines are technology-based regulations. They require polluters to adopt certain technologies aimed at reducing pollution. Section 304 of the CWA charges the EPA with duties related to setting effluent limitation guidelines for existing sources of pollution. Under § 304(b)(3), the EPA must identify the specific control measures and" } ]

[ { "docid": "22541983", "title": "", "text": "of this statute. Section 287 (a)(3) of the Act, 8 U. S. C. § 1357 (a)(3), authorizes agents, without a warrant, “within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle . . . .” Under current regulations, this authority may be exercised anywhere within 100 miles of the border. 8 CFR § 287.1 (a) (1975). The Border Patrol interprets the statute as granting authority to stop moving vehicles and question the occupants about their citizenship, even when its officers have no reason to believe that the occupants are aliens or that other aliens may be concealed in the vehicle. But “no Act of Congress can authorize a violation of the Constitution,” AImeida-Sanchez, supra, at 272, and we must decide whether the Fourth Amendment allows such random vehicle stops in the border areas. Ill The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U. S. 721 (1969); Terry v. Ohio, 392 U. S. 1, 16-19 (1968). “[Wjhenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized’ that person,” id., at 16, and the Fourth Amendment requires that the seizure be “reasonable.” As with other categories of police action subject to Fourth Amendment constraints, the reasonableness of such seizures depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers. Id., at 20-21; Camara v. Municipal Court, 387 U. S. 523, 536-537 (1967). The Government makes a convincing demonstration that the public interest demands effective measures to prevent the illegal entry of aliens at the Mexican border. Estimates of the number of illegal immigrants in the United States vary widely. A conservative estimate in 1972 produced a figure of about one million, but the INS now suggests there may be as many as 10 or 12 million aliens illegally in" } ]

[ { "docid": "8067697", "title": "", "text": "Tom Moss, an undercover police agent who was dressed in blue jeans and a T-shirt. Sgt. Moss opened the door, displayed his badge and identification, and ordered appellant into the house. Appellant immediately stepped backwards but did not attempt to run away. Sgt. Moss pulled out his revolver and again ordered appellant into the house. Appellant entered the house whereupon Sgt. Moss requested his investigator to conduct a pat down search. A small quantity of marijuana and a gun were discovered. Appellant moved to suppress the evidence seized. Appellant argued that the search was unconstitutional because it was done without a warrant, without probable cause, without consent, and not incident to a valid arrest. Appellant stressed that the stop and frisk was not based upon objective facts from which a police officer could reasonably conclude that appellant was involved in criminal activity. The government sought to justify the frisk under the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A full evidentiary hearing was held on November 26, 1979. Pursuant to the hearing, the district court denied appellant’s motion to suppress. The only issue raised by appellant is whether the firearm was lawfully seized and properly submitted into evidence over appellant’s objection. II. Discussion of Stop and Frisk Whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person. Brown v. Texas, 443 U.S. 45, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); United States v. Palmer, 603 F.2d 1286, 1288 (8th Cir. 1979). A seizure may be accomplished either by physical restraint or by sufficient show of authority. Terry v. Ohio, supra, 392 U.S. at 16, 88 S.Ct. at 1877. Thus, when Sgt. Moss ordered appellant into the house at gunpoint, he restricted appellant’s motion and performed a seizure subject to the reasonableness requirement of the fourth amendment. We must determine initially whether Sgt. Moss’ action was justified at its inception and, if so, whether the subsequent “pat down” was reasonably related in scope to the circumstances that justified the interference in the" }, { "docid": "15751695", "title": "", "text": "one year and had previously patrolled this area. Officer Lottmann was instructed to intensify his patrol so that people in the neighborhood would realize that the police were circulating in order to hold down possible conflicts. He was also instructed to discover the reasons for any street fights and to talk to the parents of the youths involved in any fights so that the combatants would be discouraged from continued fighting. One way in which Officer Lottmann intensified his patrol was by making pedestrian stops during which he filled out a field interview report form. This report consists of the pedestrian’s name, address, date of birth, all relevant identification, driver’s license, physical and clothing descriptions, and the place and time the pedestrian was stopped. Between 4:00 p. m. and 7:00 p. m. Officer Lottmann broke up three fights between white and black Castle Point youths. No arrests were made, but Officer Lottmann recorded the names and addresses of the youths. Lottmann was informed by the combatants, their parents, and some spectators that they were arming themselves for their own protection because they were not going to be assaulted without having a means of retaliation. He also learned that a gang in the neighborhood was looking for a 5'7\" black, male teenager in connection with the assault of a white female which had occurred at the Riverview Gardens High School earlier in the day. At approximately 9:00 p. m. Officer Lottmann observed appellant Palmer and Sherman Burks walking down a residential street. Lottmann stopped his police car, got out, waved his hand and called for them to come over towards the car. Lottmann’s stated purpose for the stop was to fill out field interview reports and also to ask if Palmer and Burks were aware of any upcoming gang fights. Appellant Palmer walked towards the policeman but Burks walked at an angle where he maintained his distance away from the officer. Officer Lottmann called to Burks a second time, and as Burks came over Lottmann observed that he appeared nervous and had his left hand in his coat pocket. When asked" }, { "docid": "16632899", "title": "", "text": "driving, Trooper Walker had “reasonable suspicion to stop Tommy Roberts’ vehicle.” Of course, the Trooper did not know whose car it was or who was in it. His intent was to stop everyone on the road. In fact, even after stopping the car that fortuitously was occupied by Roberts, the Trooper stopped the next car that came along. Apparently, the only suspicious act of the driver of that car was to be on Curry Branch Road. The trooper lacked the requisite individualized suspicion to make the stop in question. See United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1980). See also United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) at page 560, 96 S.Ct. at 3084: “to accommodate public and private interests some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure. See Terry v. Ohio, 392 U.S. at 21 and n. 18 [88 S.Ct. at 1879 and n. 18].” See also Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1978), as follows: To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, supra [440 U.S. 648] at 663 [99 S.Ct. 1391, 1401, 59 L.Ed.2d 660] [(1978)]. See United States v. Martinez-Fuerte, 428 U.S. 543, 558-562 [96 S.Ct. 3074, 3083-3085, 49 L.Ed.2d 1116] (1976). The State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, but rather maintains that the officers were justified in stopping appellant because they had a reasonable, articulable suspicion that a crime had just been, was being, or was about to be committed. We have recognized that in some circumstances an officer may detain a suspect briefly for questioning although he does not have probable cause to believe that the suspect is involved in criminal activity, as" }, { "docid": "15751701", "title": "", "text": "sufficient show of authority to restrain appellant’s freedom of movement, therefore appellant was seized. In determining whether this seizure has complied with the reasonableness requirement of the Fourth Amendment, we must balance the public interest against the appellant’s competing interest of being free from arbitrary interference by law officers. Brown v. Texas, supra, -U.S. at -, -, 99 S.Ct. 2637; United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). In this balancing process we follow the standards laid down by the Supreme Court in Brown v. Texas, supra, -U.S. at -, 99 S.Ct. at 2640: A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. * * * To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Id. (citations omitted). First we consider whether Officer Lottmann possessed specific, objective facts which indicated that the initial seizure of appellant Palmer was justified. In his testimony before the United States magistrate, Lottmann identified certain facts which he knew prior to the stop and upon which he based his authority to stop appellant and his companion. These facts are: (1) He would be patrolling alone in a high crime area. (2) A racial incident in which a black youth had assaulted a white female had occurred at a local high school earlier that same day prior to Lottmann going on duty. (3) Racial unrest was expected to carry over into the residential area he would be patrolling, therefore his patrol was to be intensified. (4) During his patrol he broke up three street fights between white and black youths. (5) He was informed by residents that people were arming themselves for protection with a gun," }, { "docid": "15751698", "title": "", "text": "1979. Officer Lottmann was the only witness during these hearings. The magistrate recommended that Palmer’s motion to suppress evidence be denied. The United States and Palmer submitted a written stipulation that the case be tried upon their stipulated facts and upon the transcript of the March suppression hearings. In the stipulation Palmer reserved his right to appeal any judgment which denied his motion to suppress the firearm as evidence. The district court denied Palmer’s motion to suppress evidence, found him guilty, and sentenced him to eighteen months confinement. Palmer now comes before this court contending that he was subjected to an unreasonable search and seizure. The thrust of Palmer’s argument in this appeal is that the initial stop was unreasonable. The difficult questions before this court are: (1) Whether the racial tension and related incidents preceding this on-the-street encounter justified the officer’s intrusion upon appellant’s right to personal security. (2) Whether the officer stopped appellant pursuant to a plan which circumscribed the officer’s discretion by placing explicit, neutral limitations on his conduct. See Brown v. Texas, - U.S. -, -, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Appellant Palmer and Burks were protected by the Fourth Amendment’s proscription against unreasonable search and seizure as they walked down the street in Castle Point. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967). In Terry the Supreme Court ruled that a dual inquiry is necessary in determining whether a warrantless search and seizure are unreasonable. Therefore, we must consider “whether the officer’s action was justified at its inception,” and secondly, “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 19, 20, 88 S.Ct. at 1879. Appellant does not contend that Officer Lottmann’s actions were unreasonably related in scope to the circumstances, but argues on appeal that the officer’s action in stopping him was unjustified. When Officer Lottmann stopped appellant for the purposes of obtaining identification and of soliciting information about gang fights, he performed a seizure subject to the reasonableness requirement of the Fourth Amendment. “[W]henever" }, { "docid": "15751700", "title": "", "text": "a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Id. at 16, 88 S.Ct. at 1877; United States v. Wright, 565 F.2d 486, 488 (8th Cir. 1977), cert. denied, 435 U.S. 974, 98 S.Ct. 1621, 56 L.Ed.2d 67 (1978). A seizure may be accomplished either by physical restraint or by sufficient show of authority. Terry v. Ohio, supra, 392 U.S. at 19 n. 16, 88 S.Ct. 1868. The Terry seizure requirement is fulfilled when “it is apparent from the circumstances that the individual was not free to ignore the officer and proceed on his way.” United States v. Pope, 561 F.2d 663, 668 (6th Cir. 1977). Officer Lottmann stopped his car, got out, then motioned and called for appellant and his companion Burks to walk across the street towards him. Burks did not walk towards the car in compliance with the command so Lottmann called a second time, which indicates that the pair were not free to continue down the street. Clearly Lottmann’s actions constituted a sufficient show of authority to restrain appellant’s freedom of movement, therefore appellant was seized. In determining whether this seizure has complied with the reasonableness requirement of the Fourth Amendment, we must balance the public interest against the appellant’s competing interest of being free from arbitrary interference by law officers. Brown v. Texas, supra, -U.S. at -, -, 99 S.Ct. 2637; United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). In this balancing process we follow the standards laid down by the Supreme Court in Brown v. Texas, supra, -U.S. at -, 99 S.Ct. at 2640: A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. * * * To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that" }, { "docid": "8067698", "title": "", "text": "1979. Pursuant to the hearing, the district court denied appellant’s motion to suppress. The only issue raised by appellant is whether the firearm was lawfully seized and properly submitted into evidence over appellant’s objection. II. Discussion of Stop and Frisk Whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person. Brown v. Texas, 443 U.S. 45, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); United States v. Palmer, 603 F.2d 1286, 1288 (8th Cir. 1979). A seizure may be accomplished either by physical restraint or by sufficient show of authority. Terry v. Ohio, supra, 392 U.S. at 16, 88 S.Ct. at 1877. Thus, when Sgt. Moss ordered appellant into the house at gunpoint, he restricted appellant’s motion and performed a seizure subject to the reasonableness requirement of the fourth amendment. We must determine initially whether Sgt. Moss’ action was justified at its inception and, if so, whether the subsequent “pat down” was reasonably related in scope to the circumstances that justified the interference in the first place. Id. at 19, 20, 88 S.Ct. at 1878, 1879. In determining whether Sgt. Moss had a basis for initiating a frisk, there are two inquiries to be made: whether the officer was rightfully in the presence of the party frisked so as to be endangered if that person was armed, and whether the officer had a sufficient degree of suspicion that the party to be frisked was armed and dangerous. Brown v. Texas, supra, 443 U.S. at 50-53, 99 S.Ct. at 2640-2642. Only specific articulable facts taken together with rational inferences warrant the intrusion of an investigatory search. Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1879. In making an assessment whether the seizure of appellant was justified, we judge the facts using an objective standard: would the facts available to the officer at the moment of seizure warrant a person of reasonable caution in the belief that the action taken was appropriate to protect his life or the life of innocent bystanders? Id. at 21, 22, 88 S.Ct. at" }, { "docid": "20973637", "title": "", "text": "Fourth Amendment, however, does not prohibit all seizures, only those that are unreasonable. Every Fourth Amendment seizure must have an objective justification. United States v. Mendenhall, 446 U.S. 544, 551, 100 S.Ct. 1870, 1875, 64 L.Ed.2d 497 (1980). “[I]n determining whether the seizure ... [is] ‘unreasonable’ our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). “[T]he constitutionality of such seizures [short of traditional arrest] involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). The drug interdiction method used here is intended to advance the public interest in suppressing illegal drug trafficking and, as a result, further the war on drugs. The magnitude of the problem caused by drugs in this country is manifest. The effort on the part of drug interdiction agents and officers must, however, be balanced against the intrusion on individual liberty because the Fourth Amendment protects individual rights not public goals. The Fourth Amendment guarantees “the individual’s right to personal security free from arbitrary interference by law officers.” Brown v. Texas, 443 U.S. at 50, 99 S.Ct. at 2640. Thus, to justify a seizure, the officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. at 1880. “Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result [the Supreme Court] has consistently refused to sanction.” Id. at 22, 88 S.Ct. at 1880-81. The circumstances in this ease are similar to those addressed by the Supreme Court in Brown v. Texas. There, the officers observed two men walking" }, { "docid": "22659904", "title": "", "text": "S. C. § 1257 (2). On appeal here we noted probable jurisdiction. 439 U. S. 909 (1978). We reverse. II When the officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment. In convicting appellant, the County Court necessarily found as a matter of fact that the officers “lawfully stopped” appellant. See Tex. Penal Code Ann., Tit. 8, § 38.02 (1974). The Fourth Amendment, of course, “applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U. S. 721 (1969); Terry v. Ohio, 392 U. S. 1, 16-19 (1968). ‘[W] hen ever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person,’ id., at 16, and the Fourth Amendment requires that the seizure be ‘reasonable.’ ” United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975). The reasonableness of seizures that are less intrusive than a traditional arrest, see Dunaway v. New York, 442 U. S. 200, 209-210 (1979); Terry v. Ohio, 392 U. S. 1, 20 (1968), depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Pennsylvania v. Mimms, 434 U. S. 106, 109 (1977); United States v. Brignoni-Ponce, supra, at 878. Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. See, e. g., 422 U. S., at 878-883. A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. See Delaware v. Prouse, 440 U. S. 648, 654-655 (1979); United States v. Brignoni-Ponce, supra, at 882. To this end, the Fourth Amendment requires that a seizure must" }, { "docid": "15751702", "title": "", "text": "the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Id. (citations omitted). First we consider whether Officer Lottmann possessed specific, objective facts which indicated that the initial seizure of appellant Palmer was justified. In his testimony before the United States magistrate, Lottmann identified certain facts which he knew prior to the stop and upon which he based his authority to stop appellant and his companion. These facts are: (1) He would be patrolling alone in a high crime area. (2) A racial incident in which a black youth had assaulted a white female had occurred at a local high school earlier that same day prior to Lottmann going on duty. (3) Racial unrest was expected to carry over into the residential area he would be patrolling, therefore his patrol was to be intensified. (4) During his patrol he broke up three street fights between white and black youths. (5) He was informed by residents that people were arming themselves for protection with a gun, knife, or a bat with nails in it. (6) He also learned that a gang was looking for a 5'7\" black, male teenager in connection with the high school assault. The facts clearly reveal general racial unrest and the rumors of possible gang action indicate that further trouble could reasonably be anticipated. However, generalized racial unrest cannot obviate the requirement that law officers “have a reasonable suspicion, based on objective facts, that the individual [seized] is involved in criminal activity.\" Brown v. Texas, supra, - U.S. at -, 99 S.Ct. at 2641. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, supra, 422 U.S. at 882-883, 95 S.Ct. 2574; United States v. Nicholas, 448 F.2d 622 (8th Cir. 1971). Officer Lottmann testified that he was not looking for a suspect in connection with a recent robbery or burglary , and that he did not suspect appellant or Burks of casing a house for a possible burglary when he stopped them. Further, Lottmann testified that appellant" }, { "docid": "22659905", "title": "", "text": "arrest, see Dunaway v. New York, 442 U. S. 200, 209-210 (1979); Terry v. Ohio, 392 U. S. 1, 20 (1968), depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Pennsylvania v. Mimms, 434 U. S. 106, 109 (1977); United States v. Brignoni-Ponce, supra, at 878. Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. See, e. g., 422 U. S., at 878-883. A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. See Delaware v. Prouse, 440 U. S. 648, 654-655 (1979); United States v. Brignoni-Ponce, supra, at 882. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, supra, at 663. See United States v. Martinez-Fuerte, 428 U. S. 543, 558-562 (1976). The State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, but rather maintains that the officers were justified in stopping appellant because they had a “reasonable, articulable suspicion that a crime had just been, was being, or was about to be committed.” We have recognized that in some circumstances an officer may detain a suspect briefly for questioning although he does not have “probable cause” to believe that the suspect is involved in criminal activity, as is required for a traditional arrest. United States v. Brignoni-Ponce, supra, at 880-881. See Terry v. Ohio, supra, at 25-26. However, we have required the officers to have a reasonable suspicion, based on objective facts, that" }, { "docid": "16632900", "title": "", "text": "S.Ct. 2637, 61 L.Ed.2d 357 (1978), as follows: To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, supra [440 U.S. 648] at 663 [99 S.Ct. 1391, 1401, 59 L.Ed.2d 660] [(1978)]. See United States v. Martinez-Fuerte, 428 U.S. 543, 558-562 [96 S.Ct. 3074, 3083-3085, 49 L.Ed.2d 1116] (1976). The State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, but rather maintains that the officers were justified in stopping appellant because they had a reasonable, articulable suspicion that a crime had just been, was being, or was about to be committed. We have recognized that in some circumstances an officer may detain a suspect briefly for questioning although he does not have probable cause to believe that the suspect is involved in criminal activity, as is required for a traditional arrest. United States v. Brignoni-Ponce, supra, [422 U.S. 873] at 880-881 [95 S.Ct. 2574, 2579-2581, 45 L.Ed.2d 607 (1975)]. See Terry v. Ohio, supra, 392 U.S. at 25-26 [88 S.Ct. at 1882-1883]. However, we have required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. Delaware v. Prouse, supra, [440 U.S.] at 663 [99 S.Ct. at 1401]; United States v. Brignoni-Ponce, supra [422 U.S.] at 882-883 [95 S.Ct. at 2580-2581]; see also Lanzetta v. New Jersey, 306 U.S. 451 [59 S.Ct. 618, 83 L.Ed. 888] (1939). Id. 443 U.S. at 51, 99 S.Ct. at 2640. See also Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1978). The Government has attempted to avoid the effect of the stated intent of the troopers to conduct a “moving road check” of all cars by asserting that from the totality of the circumstances the stop was reasonable. The majority agrees. I respectfully assert that the facts do not support such" }, { "docid": "17362891", "title": "", "text": "been stopped. If that appearance were an overriding factor, United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (roving border patrol stops of cars based on appearance of Mexican ancestry held invalid), would come into play. Any set of rules or regulations should embody, I think, protections of this nature. As the Court said in Brown v. Texas: [T]he Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. - U.S. at -, 99 S.Ct. at 2640. Accordingly, because neither of these conditions has been met, and because the incident in the instant case is not an isolated event, but rather part of a major law enforcement practice, a distinction the implications of which had previously escaped me, I respectfully dissent. . Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 367 (1974). . See also its companion cases, Sibron v. New York and Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). . Justice Harlan’s phrase speaks to subjective expectations, a position which has logical problems (for one’s subjective expectations can always be diminished by mere governmental warning) and which he himself came to disregard, in United States v. White, 401 U.S. 745, 786, 91 S.Ct 1122, 1143, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting) (“The analysis must, in my view, transcend the search for subjective expectations or legal attribution of assumptions of risk. Our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present.”). . See majority opinion n.4. . The Court characterizes Terry as allowing the less intrusive seizure, i.e., stop, “only for the purpose of a pat-down for weapons.” Duna-way v. New York, 442 U.S. 210, 99 S.Ct. 2248, 2255, 60 L.Ed.2d 824 (1979). One wonders whether the Court is really talking about" }, { "docid": "15751705", "title": "", "text": "guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. See Delaware v. Prouse, supra, [99 S.Ct. at 1400].” Brown v. Texas, supra, -U.S. at -, 99 S.Ct. at 2641. Secondly, we consider whether Officer Lottmann was acting pursuant to a plan incorporating explicit, neutral limitations on his conduct. Although this issue was not argued by the parties, Officer Lottmann did give testimony relevant to the issue at the hearings before the magistrate. Lottmann testified that his supervisor on October 20, 1977, Lieutenant Benoise, had told him to intensify his patrol in the area. Additional testimony revealed that Lottmann himself had made the decision that the way he would intensify the patrol would be by filling out field interview reports (FIRS). Lottmann indicated that he had completed five, possibly ten, FIRS before the time he stopped appellant and Burks. When questioned as to the guidelines officers use in filling out FIRS, Lottmann specified two guidelines. First, officers do a canvas of an area where a serious crime such as burglary, armed robbery, or homicide has been committed. Officers fill out an FIR on people in the area so that detectives can do follow-up interviews to obtain undisclosed information. Secondly, FIRS are completed on people whom the officer’s radio channel has reported to be a person of noteworthy interest. These people have been specified as noteworthy either by a federal agency or by the officer’s department in that the whereabouts of this particular person is desired information. Further, Lottmann testified that there is no regulation describing whether an officer should make a request, or direct, or order a person to stop and give the desired informa tion. At the March 8 hearing Lottmann did, however, detail the procedure he used in his past experiences of conducting FIRS: I stop the car, get out and approach them and they approach me. And then I interview them, fill out the FIR and explain why I’m filling it out and what information is on" }, { "docid": "15751697", "title": "", "text": "for identification, Burks told Lottmann his name, but began stuttering and fidgeting. When Officer Lottmann stepped forward Burks jerked back, so Lottmann grabbed Burks’ right coat pocket. The officer felt a hard object, reached inside and found a pocketknife. Burks jerked again and Lottmann grabbed the left coat pocket. Lottmann felt Burks’ hand and another hard object, reached inside and retrieved a gun. Lottmann then arrested Burks for carrying a concealed weapon. Turning to appellant Palmer, who had been standing still during this sequence of events, Officer Lottmann asked him to place his hands on the car. Lottmann conducted a patdown search of appellant and discovered a .45 automatic in the small of his back. Appellant was then arrested for carrying a concealed weapon. Prior to trial Palmer filed a motion to suppress the firearm as evidence on the grounds that it had been unlawfully seized in violation of his rights under the Fourth Amendment. The matter was referred to a United States magistrate, who held hearings on the motion on March 2 and 8, 1979. Officer Lottmann was the only witness during these hearings. The magistrate recommended that Palmer’s motion to suppress evidence be denied. The United States and Palmer submitted a written stipulation that the case be tried upon their stipulated facts and upon the transcript of the March suppression hearings. In the stipulation Palmer reserved his right to appeal any judgment which denied his motion to suppress the firearm as evidence. The district court denied Palmer’s motion to suppress evidence, found him guilty, and sentenced him to eighteen months confinement. Palmer now comes before this court contending that he was subjected to an unreasonable search and seizure. The thrust of Palmer’s argument in this appeal is that the initial stop was unreasonable. The difficult questions before this court are: (1) Whether the racial tension and related incidents preceding this on-the-street encounter justified the officer’s intrusion upon appellant’s right to personal security. (2) Whether the officer stopped appellant pursuant to a plan which circumscribed the officer’s discretion by placing explicit, neutral limitations on his conduct. See Brown v." }, { "docid": "3330156", "title": "", "text": "learned that the suspected operator of the van had been convicted of receiving stolen goods and was out of prison on parole. Because of their knowledge and because of the concerned requests of the local citizens, the police intended to question the operator of the van. This was not a random stop of a passerby. No search was anticipated. No arrest was anticipated. Anytime a police officer accosts an individual and restrains his freedom to walk away, however, he has “seized” that person and the Fourth Amendment requires that the seizure be reasonable. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The reasonableness of seizures that are less intrusive than a traditional arrest depends on a balance between the public interest and the individual’s right to personal freedom from arbitrary interference by law officers. Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Consideration of the propriety of such seizures requires weighing the gravity of the public concern served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. United States v. Brignoni-Ponce, 422 U.S. 873, 878-83, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual. Brown v. Texas,U.S. -, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). We are firmly convinced that the facts related above were sufficiently specific, objective, and articulable to satisfy any of the tests. We weigh the interest of the police in reacting to citizens’ legitimate concerns about a suspicious person in the neighborhood and in reacting to their own reasonable suspicions about potential criminal activity and find it an important governmental interest. That interest is furthered by the type of seizure anticipated here: A simple questioning and identification of Plaintiff would certainly advance the government’s interest by negating or confirming those suspicions in a short time. The interest to the public is not outweighed by the anticipated minimal" }, { "docid": "15751696", "title": "", "text": "themselves for their own protection because they were not going to be assaulted without having a means of retaliation. He also learned that a gang in the neighborhood was looking for a 5'7\" black, male teenager in connection with the assault of a white female which had occurred at the Riverview Gardens High School earlier in the day. At approximately 9:00 p. m. Officer Lottmann observed appellant Palmer and Sherman Burks walking down a residential street. Lottmann stopped his police car, got out, waved his hand and called for them to come over towards the car. Lottmann’s stated purpose for the stop was to fill out field interview reports and also to ask if Palmer and Burks were aware of any upcoming gang fights. Appellant Palmer walked towards the policeman but Burks walked at an angle where he maintained his distance away from the officer. Officer Lottmann called to Burks a second time, and as Burks came over Lottmann observed that he appeared nervous and had his left hand in his coat pocket. When asked for identification, Burks told Lottmann his name, but began stuttering and fidgeting. When Officer Lottmann stepped forward Burks jerked back, so Lottmann grabbed Burks’ right coat pocket. The officer felt a hard object, reached inside and found a pocketknife. Burks jerked again and Lottmann grabbed the left coat pocket. Lottmann felt Burks’ hand and another hard object, reached inside and retrieved a gun. Lottmann then arrested Burks for carrying a concealed weapon. Turning to appellant Palmer, who had been standing still during this sequence of events, Officer Lottmann asked him to place his hands on the car. Lottmann conducted a patdown search of appellant and discovered a .45 automatic in the small of his back. Appellant was then arrested for carrying a concealed weapon. Prior to trial Palmer filed a motion to suppress the firearm as evidence on the grounds that it had been unlawfully seized in violation of his rights under the Fourth Amendment. The matter was referred to a United States magistrate, who held hearings on the motion on March 2 and 8," }, { "docid": "15751704", "title": "", "text": "and Burks were not acting suspiciously in any manner and that he did not suspect them of having committed any criminal activity. At one point Lottmann indicated that he thought appellant could possibly have been a high school student. However, in later testimony Lottmann revealed that when he made the stop, he did not suspect appellant or Burks of being involved in the high school racial incident. Lottmann’s testimony demonstrates that not only did he lack “a reasonable suspicion” that appellant was involved in criminal activity, he actually had no suspicion whatsoever that appellant or Burks was involved in criminal activity. We recognize that Officer Lottmann’s stop was an attempt to further the social objective of crime prevention. However, the balance tips in favor of freedom from police interference when there is no articulable basis for suspecting appellant Palmer of involvement in criminal activity. “[E]ven assuming that [crime prevention] is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. See Delaware v. Prouse, supra, [99 S.Ct. at 1400].” Brown v. Texas, supra, -U.S. at -, 99 S.Ct. at 2641. Secondly, we consider whether Officer Lottmann was acting pursuant to a plan incorporating explicit, neutral limitations on his conduct. Although this issue was not argued by the parties, Officer Lottmann did give testimony relevant to the issue at the hearings before the magistrate. Lottmann testified that his supervisor on October 20, 1977, Lieutenant Benoise, had told him to intensify his patrol in the area. Additional testimony revealed that Lottmann himself had made the decision that the way he would intensify the patrol would be by filling out field interview reports (FIRS). Lottmann indicated that he had completed five, possibly ten, FIRS before the time he stopped appellant and Burks. When questioned as to the guidelines officers use in filling out FIRS, Lottmann specified two guidelines." }, { "docid": "15751699", "title": "", "text": "Texas, - U.S. -, -, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Appellant Palmer and Burks were protected by the Fourth Amendment’s proscription against unreasonable search and seizure as they walked down the street in Castle Point. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967). In Terry the Supreme Court ruled that a dual inquiry is necessary in determining whether a warrantless search and seizure are unreasonable. Therefore, we must consider “whether the officer’s action was justified at its inception,” and secondly, “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 19, 20, 88 S.Ct. at 1879. Appellant does not contend that Officer Lottmann’s actions were unreasonably related in scope to the circumstances, but argues on appeal that the officer’s action in stopping him was unjustified. When Officer Lottmann stopped appellant for the purposes of obtaining identification and of soliciting information about gang fights, he performed a seizure subject to the reasonableness requirement of the Fourth Amendment. “[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Id. at 16, 88 S.Ct. at 1877; United States v. Wright, 565 F.2d 486, 488 (8th Cir. 1977), cert. denied, 435 U.S. 974, 98 S.Ct. 1621, 56 L.Ed.2d 67 (1978). A seizure may be accomplished either by physical restraint or by sufficient show of authority. Terry v. Ohio, supra, 392 U.S. at 19 n. 16, 88 S.Ct. 1868. The Terry seizure requirement is fulfilled when “it is apparent from the circumstances that the individual was not free to ignore the officer and proceed on his way.” United States v. Pope, 561 F.2d 663, 668 (6th Cir. 1977). Officer Lottmann stopped his car, got out, then motioned and called for appellant and his companion Burks to walk across the street towards him. Burks did not walk towards the car in compliance with the command so Lottmann called a second time, which indicates that the pair were not free to continue down the street. Clearly Lottmann’s actions constituted a" }, { "docid": "15751703", "title": "", "text": "knife, or a bat with nails in it. (6) He also learned that a gang was looking for a 5'7\" black, male teenager in connection with the high school assault. The facts clearly reveal general racial unrest and the rumors of possible gang action indicate that further trouble could reasonably be anticipated. However, generalized racial unrest cannot obviate the requirement that law officers “have a reasonable suspicion, based on objective facts, that the individual [seized] is involved in criminal activity.\" Brown v. Texas, supra, - U.S. at -, 99 S.Ct. at 2641. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, supra, 422 U.S. at 882-883, 95 S.Ct. 2574; United States v. Nicholas, 448 F.2d 622 (8th Cir. 1971). Officer Lottmann testified that he was not looking for a suspect in connection with a recent robbery or burglary , and that he did not suspect appellant or Burks of casing a house for a possible burglary when he stopped them. Further, Lottmann testified that appellant and Burks were not acting suspiciously in any manner and that he did not suspect them of having committed any criminal activity. At one point Lottmann indicated that he thought appellant could possibly have been a high school student. However, in later testimony Lottmann revealed that when he made the stop, he did not suspect appellant or Burks of being involved in the high school racial incident. Lottmann’s testimony demonstrates that not only did he lack “a reasonable suspicion” that appellant was involved in criminal activity, he actually had no suspicion whatsoever that appellant or Burks was involved in criminal activity. We recognize that Officer Lottmann’s stop was an attempt to further the social objective of crime prevention. However, the balance tips in favor of freedom from police interference when there is no articulable basis for suspecting appellant Palmer of involvement in criminal activity. “[E]ven assuming that [crime prevention] is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the" } ]

[ { "docid": "22551826", "title": "", "text": "Mr. Justice Butler delivered the opinion of the Court. In September, 1917, respondent, then 24 years old, enlisted in the United States Navy. He was successively commissioned ensign and lieutenant, and became an air pilot. He was honorably discharged June 30, 1922. While in the service he obtained a policy of war risk insurance which lapsed November 30, 1923. He brought this suit March 15, 1932, in the federal district court for northern Florida to recover the amounts payable under the policy for total permanent disability alleged to have resulted from kidney disease and injuries received in an airplane crash occurring while the policy was in force. At the close of all the evidence the United States moved for a directed verdict. The motion was denied, the jury found for respondent, and the court gave him judgment which was affirmed by the Circuit Court of Appeals. 68 F. (2d) 656. The policy covers total permanent disability, whatever its cause, occurring before the lapse. The evidence was not confined to that period, for respondent’s subsequent condition is pertinent to the extent that it tends to show whether he became totally and permanently disabled before the lapse. Lumbra v. United States, 290 U. S. 551, 560. The United States maintains that the evidence was not sufficient to sustain the verdict. And that is the sole question presented for our consideration. The material substance of the evidence follows. In the latter part of 1919, respondent first had kidney trouble. According to the naval medical records, he was sick four times from what was finally diagnosed as a kidney stone. These illnesses were in June and September, 1920, and in January and August, 1921; their duration in all was about six weeks; while they lasted urinalyses sometimes disclosed albumin, casts and corpuscles in varying quantities. Some time after the last attack, the stone was removed. November 14, 1921, respondent’s upper and lower jaws were fractured in the airplane crash. He was in the naval hospital until February, 1922. He testified that he continuously had kidney trouble and severe pains in the head and back." } ]

[ { "docid": "13235193", "title": "", "text": "the further trial of this cause was continued as follows.’ The transcript next shows some discussion by counsel as to the exclusion of particular evidence, after which is this entry: ‘Thereupon counsel for defendant made a formal motion under the evidence on both sides that the coürt instruct the jury to return a verdict for the defendant.’ Although the bill of exceptions does not state, in words, that it contains all the evidence, the above entries sufficiently show that it does contain all the evidence. It is therefore proper to inquire on this record whether the circuit court erred in giving a peremptory instruction for the defendant.” See, also, Clyatt v. United States, 197 U.S. 207, 220, 221, 25 S.Ct. 429, 49 L.Ed. 726; Crowe v. Trickey, 204 U.S. 228, 235, 27 S.Ct. 275, 51 L.Ed. 454; Rasmussen v. United States (C.C.A.9) 8 F.(2d) 948, 949, certiorari denied 270 U.S. 653, 46 S.Ct. 352, 70 L.Ed. 782; United States v. Densmore (C.C.A.9) 58 F.(2d) 748, 751, certiorari denied 287 U.S. 598, 53 S.Ct. 24, 77 L.Ed. 521; Shreve v. United States (C.C.A.9) 77 F.(2d) 2, 8; Stinson v. Business Men’s Accident Ass’n (C.C.A.10) 43 F. (2d) 312, 314; Page v. Lafayette Worsted Co. (C.C.A.l) 66 F.(2d) 339, 341, certiorari denied 290 U.S. 692, 54 S.Ct. 127, 78 L.Ed. 596; United States v. Alvord (C.C.A.l) 66 F.(2d) 455, 456, certiorari denied 291 U.S. 661, 54 S.Ct. 376, 78 L.Ed. 1053; Equitable Life Assur. Soc. v. Halliburton (C.C.A.10) 67 F.(2d) 854. The motion to strike the bill of exceptions is denied. We next turn to a consideration of the appeal on the merits. ■ This is an action at law brought to recover damages for the death of Andrew Andersen, which is alleged by the appellee to have been caused by the appellant’s .negligence when the appellant’s vessel collided with Andersen’s fishing boat. The appellant filed an answer containing a general denial, together with the affirmative defense that the decedent was guilty of contributory negligence. The jury returned a verdict in the appellee’s favor, and a judgment was rendered thereon. From such" }, { "docid": "11914324", "title": "", "text": "MURRAH, Circuit Judge. The trial court denied recovery on this suit by the appellant, as administratrix of the estate of Jerry M. Booker, for the proceeds of a world war risk insurance policy. The insurance contract was issued to Jerry M. Booker while he was in the military service of the United States and lapsed for non-payment of premiums on April 1, 1919, unless he was totally and permanently disabled as defined by the terms of the policy on that date. By agreement the case was tried to the court without a jury, resulting in a finding that Booker was not totally and permanently disabled on April 1, 1919, within the terms of the policy. The sole question presented is whether or not there is any substantial evidence to support the findings of the trial court. It is now elemental that one claiming total permanent disability under provisions of a war risk insurance policy has the burden to prove that while the policy was in full force and effect he suffered an impairment of mind or body, which continually renders it impossible for him to follow any substantially gainful occupation, and which is founded upon conditions which render it reasonably certain that it will continue throughout the life of the insured. United States v. Smith, 9 Cir., 117 F.2d 911; Adams v. United States, 7 Cir., 116 F.2d 199; United States v. Atchley, 10 Cir., 116 F.2d 266, and Tyrakoski v. United States, 7 Cir., 119 F.2d 339. To meet that burden it is not necessary that insured be bedridden, wholly helpless, or that he should abandon every possible effort to work. Temporary or spasmodic periods of work do not necessarily negative total permanent disability. Berry v. United States, 312 U.S. 450, 61 S.Ct. 637, 85 L.Ed. 945 and Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492. Likewise, temporary total disability does not constitute permanent total disability, and total permanent, disability, established after the lapsing of the policy is not conclusive of total permanent disability while the policy was in force and effect, and can" }, { "docid": "11914325", "title": "", "text": "or body, which continually renders it impossible for him to follow any substantially gainful occupation, and which is founded upon conditions which render it reasonably certain that it will continue throughout the life of the insured. United States v. Smith, 9 Cir., 117 F.2d 911; Adams v. United States, 7 Cir., 116 F.2d 199; United States v. Atchley, 10 Cir., 116 F.2d 266, and Tyrakoski v. United States, 7 Cir., 119 F.2d 339. To meet that burden it is not necessary that insured be bedridden, wholly helpless, or that he should abandon every possible effort to work. Temporary or spasmodic periods of work do not necessarily negative total permanent disability. Berry v. United States, 312 U.S. 450, 61 S.Ct. 637, 85 L.Ed. 945 and Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492. Likewise, temporary total disability does not constitute permanent total disability, and total permanent, disability, established after the lapsing of the policy is not conclusive of total permanent disability while the policy was in force and effect, and can only be considered as evidence thereof. Miller v. United States, 294 U.S. 435, 440, 55 S.Ct. 440, 442, 79 L.Ed. 977; Thatenhorst v. United States, 10 Cir., 119 F.2d 567, and Hoskins v. United States, 5 Cir., 100 F.2d 343. It is equally well settled that this court is not warranted in overturning the findings of fact of the trial court if there is any substantial evidence in .the record to support them. Gray v. United States, 8 Cir., 109 F.2d 728; United States v. Fitzpatrick, 10 Cir., 62 F.2d 562; Storey v. United States, 10 Cir., 60 F.2d 484; United States v. Peet, 10 Cir., 59 F.2d 728, and United States v. Phillips, 8 Cir., 44 F.2d 689. A brief review of the evidence reveals that the insured, Jerry M. Booker, was inducted into the military service of the United States on August 1, 1918. While in France he entered a base hospital on October 7, 1918, complaining of pain all over, chill, fever, and a cough. His condition was diagnosed pneumonia, with mastoid" }, { "docid": "11975478", "title": "", "text": "mind prior to the expiration of his policy. Here the determinative question is whether the extent and character of the veteran’s work record completely refutes the evidence tending to show that he was totally and permanently disabled before August 29, 1919. We cannot say as a matter of law that it does, when viewed in the light most favorable to him. In Lumbra v. United States, 290 U.S. 551, 558, 54 S.Ct. 272, 275,^ 78 L.Ed. 492, the court said: “The phrase ‘total permanent disability’ is to be construed reasonably and having regard to the circumstances of each case”; and 290 U.S. 551, at page 560, 54 S.Ct. 272, 276, 78 L.Ed. 492, “The mere fact that one has done some work after the lapse of his policy is not of itself sufficient to defeat his claim of total permanent disability. He may have worked when really unable and at the risk of endangering his health or life. But manifestly work performed may be such as conclusively to negative total permanent disability at the earlier time.” So that the extent and character of the veteran’s industrial record is not always determinative. A material inquiry was whether he was able to work. That question was determined against the veteran as a matter of law. The District Court said, “Now, the evidence here is perfectly clear that he was able to work because he worked, and worked very substantially for very substantial periods.” Thus, the court refuted the veteran’s claim by reference to his own conduct. It is true that a veteran’s acts and statements might so clearly indicate his own disbelief that he was totally and permanently disabled as to warrant a directed verdict against him. See Lumbra v. United States, supra, 290 U.S. 551, at page 560, 54 S.Ct. 272, 276, 78 L.Ed. 492. This is especially true where the ailment complained of is purely physical, but we are dealing with a different situation. The veteran was suffering with a pronounced type of catatonic dementia praecox, a progressive and incurable mental disease. The permanency of the malady and the inevitableness" }, { "docid": "9927727", "title": "", "text": "v. United States, 290 U.S. 551, 553, 54 S.Ct. 272, 78 L.Ed. 492; Gunning v. Cooley, supra, 281 U.S. at page 94, 50 S.Ct. 231, 74 L.Ed. 720. Here the only difficulty presented is the appellee’s work record. Is this rather extensive work record such a physical'fact as positively contradicts the appellee’s evidence of total permanent disability ? It is a rule of uniform application in the Federal Courts that where testimony is positively contradicted by the physical facts neither the court nor jury can be permitted to give it credence. Deadrich v. United States, supra; United States v. Harth, 8 Cir., 61 F.2d 541, 544; United States v. Kerr, 9 Cir., 61 F.2d 800, 803. Employment may be of such duration and nature that it conclusively refutes any idea that the insured might have been totally permanently disabled prior to and during such employment. Nicolay v. United States, 10 Cir., 51 F.2d 170, 173; United States v. Harth, supra. However, “The' mere fact that one has done some work after the lapse of his policy is not of itself sufficient to defeat his claim of total permanent disability. He may have worked when really unable and at the risk of endangering his health or life.” Lumbra v. United States, supra, 290 U.S. at page 560, 54 S.Ct. at page 276, 78 L.Ed. 492. See United States v. Spaulding, supra, 293 U.S. at page 505, 55 S.Ct. 273, 79 L.Ed. 617; United States v. Fairbanks, 9 Cir., 89 F.2d 949, 953. This court knows that tuberculosis is a progressive disease; incipient, it oftens responds to proper treatment, which arrests the progress of the disease and leaves the victim with many years of useful life, under favorable conditions. On the other hand, many cases are incurable from the start, resisting the most enlightened medical treatment' Here we are confronted with a case where, on a date when the policy was in force, the plaintiff was suffering from pulmonary tuberculosis, active, chronic, “on the borderline between moderately advanced and far advanced.” It had passed the incipient stage. In these circumstances any work" }, { "docid": "13260402", "title": "", "text": "If a policy lapsed, for nonpayment of premiums, before death or total permanent disability occurred, there could be no recovery under the policy. If either of the contingencies insured against occurred during the life of the policy, there could be a recovery. “Total disability is any impairment of- . mind or body which renders it impossible for the insured to engage continuously in any substantially gainful occupation, and total disability is permanent if it is founded upon conditions which make it reasonably certain that it will continue throughout life. A total disability which has not become permanent before the lapse of a policy does not mature it, nor does a permanent disability which has not become total.” In that ease the question of permanency rather than of total disability was the issue, but the following language from the Eggen Case is equally pertinent to the issue here: “When an insured has a total disability which, during the life of the policy, is not founded upon conditions which make it rear sonably certain that it will continue throughout life, he may not lapse his policy and then, if the disease later reaches a point where the conditions are such as to make it reasonably certain that he will not recover, treat the poliey as having matured as of the date of the lapse. 'He can only collect his insurance under such circumstances if he keeps the policy alive by the payment of premiums until his total disability becomes also a permanent disability.” It is to be presumed that any appreciable degree of disability is attended by discomfort, pain, or, at least, by inconvenience and handicap in the discharge of the normal activities of life. If such conditions are to be deemed sufficient to warrant recovery under the terms of a war risk policy, then the precision with which the degree of disability, necessary for such recovery, has been defined was wholly unnecessary. Appellee sustained a severe wound while in service on the field of battle. It is no doubt a: serious handicap in the pursuit of a substantially gainful occupation. He'" }, { "docid": "13505781", "title": "", "text": "he does not say whether his illness was due to nervousness or whether it was due to other diseases for which he was being treated at that time and of which he does not now complain. In the years from 1923 .to 1927 he was engaged in the study of dentistry. In Burbage v. United States, 5 Cir., 80 F.2d 683, 684, the court stated: “The insurmountable obstacle to appellant’s recovery is his two years’ work studying law * * *. ” While the evidence of the plaintiff’s activities during his years in school is not detailed as in the cited case it is undisputed that he completed his training with some degree of distinction. Necessarily this required many hours of application and constitutes evidence inconsistent with his claim that he was totally and permanently disabled. Stephenson v. United States, 8 Cir., 78 F.2d 355; O’Quinn v. United States, 5 Cir., 70 F.2d 599; Burbage v. United States, supra; United States v. Nickle, 8 Cir., 70 F.2d 873; United States v. Nelson, 8 Cir., 102 F.2d 515. The plaintiff frankly admits that he did not consider himself totally and permanently disabled until, some six years after the lapse of his policy. It might also be inferred that he had not definitely reached that conclusion in 1931 at the time he made application for a civil service appointment. This action was not brought until November 11, 1932, or more than ten years after the date of lapse. These circumstances all militate against his contention of total permanent disability on June 30, 1922. Miller v. United States, 294 U.S. 435, 441, 55 S.Ct. 440, 79 L.Ed. 977; Lumbra v. United States, 290 U.S. 551, 560, 54 S.Ct: 272, 78 L.Ed. 492; United States v. Fields, 8 Cir., 102 F.2d 535; Stephenson v. United States, 8 Cir., 78 F.2d 355. The foregoing compels the Conclusion that the evidence was insufficient to support the finding of the jury that the plaintiff was totally and permanently disabled at the time his contract of insurance lapsed. The government’s motion for a directed verdict should have been" }, { "docid": "13505782", "title": "", "text": "F.2d 515. The plaintiff frankly admits that he did not consider himself totally and permanently disabled until, some six years after the lapse of his policy. It might also be inferred that he had not definitely reached that conclusion in 1931 at the time he made application for a civil service appointment. This action was not brought until November 11, 1932, or more than ten years after the date of lapse. These circumstances all militate against his contention of total permanent disability on June 30, 1922. Miller v. United States, 294 U.S. 435, 441, 55 S.Ct. 440, 79 L.Ed. 977; Lumbra v. United States, 290 U.S. 551, 560, 54 S.Ct: 272, 78 L.Ed. 492; United States v. Fields, 8 Cir., 102 F.2d 535; Stephenson v. United States, 8 Cir., 78 F.2d 355. The foregoing compels the Conclusion that the evidence was insufficient to support the finding of the jury that the plaintiff was totally and permanently disabled at the time his contract of insurance lapsed. The government’s motion for a directed verdict should have been sustained. The judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion." }, { "docid": "3738909", "title": "", "text": "WOOLLEY, Circuit Judge. John Russian, a private in the United States Army, applied for and in February 1918 received a poliey of war risk insurance covering death and total permanent disability occurring during the life of the policy. In December 1918 he was honorably discharged on a surgeon’s certificate of disability disclosing chronic pulmonary tuberculosis involving the upper lobes of both lungs. At that time he was rated by the Veterans’ Bureau as being temporarily totally disabled. Upon his discharge the veteran ceased paying premiums on his insurance and, on January 1, 1919, his poliey lapsed. In 1928 the. veteran developed tuberculosis of the lower bowels and in 1929 committed suicide. In July 1931 his widow, as administratrix, brought this suit on the poliey of war risk insurance with the essential allegation of total permanent disability of the veteran incurred before the expiration of the poliey. At the trial the government moved for a directed verdict in its favor on the ground that the plaintiff had failed to present any substantial evidence of total permanent disability of the veteran within the meaning and during the life of the contract of insurance. The court, being without aid from the decision in Lumbra v. United States, 290 U. S. 551, 54 S. Ct. 272, 78 L. Ed. 492, later rendered, refused the motion. On submitting the ease the plaintiff had a verdict. The government appealed, raising the question presented on its motion for a directed verdict. Conformably with the rule, it assumed as established all the facts that the evidence supporting the plaintiff’s claims reasonably tends to prove and all inferences fairly dedueible from them. Gunning v. Cooley, 281 U. S. 90, 94, 50 S. Ct. 231, 74 L. .Ed. 720. The law applicable to this ease may be summarized as follows: “The basic law and the decided cases establish the propositions that recovery may not be had on a contract of war risk insurance for temporary total disability, Mason v. United States (C. C. A.) 63 F.(2d) 791; or for permanent partial disability, United States v. Thomas (C. C. A.) 64" }, { "docid": "11975480", "title": "", "text": "of resulting total disability were reasonably predictable during the life of the policy and so caused it to mature. In this aspect the case is differentiated from the Lumbra Case and United States v. Gwin, 68 F.(2d) 124 (C.C.A. 6).. The Lumbra Case did not involve dementia praecox and the opinion in the Gwin Case indicates nothing more than “incipient de mentía praecox” at the time the policy was alleged to have lapsed. It did not appear that Gwin’s disease was the severe, catatonic type, during the life of the policy. We think that the determination of whether the veteran’s industrial record destroyed his claim necessitates a finding upon the debatable question whether he acted upon sound judgment, or, affected by the vagaries of a disordered mind, took risks with his health or life. This question is peculiarly .one for the consideration of a jury. Appellee urges upon the authority of the Lumbra Case that the delay in bringing suit from August 29, 1919, to October 10, 1932, was strong evidence that the veteran was not permanently and totally disabled before the earlier date, but he could not himself sue while he was under guardianship, and a jury might reasonably conclude that for the remainder of the time he could not appreciate his condition or understand his legal rights. United States v. Newcomer, 78 F.(2d) 50, 53 (C.C.A. 8). The judgment is reversed and the case remanded for a new trial." }, { "docid": "14289001", "title": "", "text": "KERNER, Circuit Judge. This action was brought by the plaintiff to recover on a policy of war risk insurance issued to Adams, who was in the United States Army from May 17, 1917, to January 19, 1920, when he was honorably discharged. The case was tried to a jury. At the close of all the evidence the defendant moved for a directed verdict on the ground that there was no substantial evidence to support a finding for the plaintiff. The District Court reserved its ruling and submitted the case to the jury. . The jury returned a verdict for the plaintiff, finding that he became totally and permanently disabled on January 10, 1920. Thereafter defendant moved for judgment notwithstanding the verdict, which the trial court granted, set aside the verdict, dismissed the complaint and rendered judgment for costs against the plaintiff. To reverse the judgment plaintiff appeals. The question presented- is whether the evidence was such as to justify the court’s ruling as a matter of law that there was lack of substantial evidence that plaintiff was totally and permanently disabled while his insurance was in force. In the examination of this question we are not to weigh the evidence and what our verdict would have been as jurymen is immaterial. It is likewise of no importance that we may be of the opinion that the evidence preponderates in favor of the defendant, for the reason that the responsibility of weighing the facts lies with the jury. United States v. Dudley, 9 Cir., 64 F.2d 743. In our case we must assume as established all the facts that the evidence supporting plaintiff’s claim reasonably tends to prove, and there should be drawn in his favor all the inferences fairly deducible from such facts. Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492, and Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720. In an action of this character the plaintiff must show (1) that before the policy lapsed he was totally disabled, i. e., that his disability was of such a character" }, { "docid": "9927726", "title": "", "text": "Co., 228 U.S. 364, 369, 33 S.Ct. 523, 57 L.Ed. 879, Ann.Cas.1914D, 1029; Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; United States Fidelity & Guaranty Co. v. Blake, 9 Cir., 285 F. 449, 452; United States v. Burke, 9 Cir., 50 F.2d 653, 656; Deadrich v. United States, 9 Cir., supra, 74 F.2d at pages 621, 622; United States v. Thompson, 9 Cir., 92 F.2d 135, 139. In the examination of this question we are not to weigh the evidence; what our verdict would have been as jurymen is immaterial; it is likewise immaterial that the court may be of opinion that the evidence preponderates in favor of the party making the motion — the responsibility of weighing the facts is the jury’s. United States v. Dudley, 9 Cir., 64 F.2d 743, 744. We must assume as established, however, all the facts that the evidence supporting plaintiff’s claim reasonably tends to prove, and there should be drawn in his favor all the inferences fairly deducible from such facts. Lumbra v. United States, 290 U.S. 551, 553, 54 S.Ct. 272, 78 L.Ed. 492; Gunning v. Cooley, supra, 281 U.S. at page 94, 50 S.Ct. 231, 74 L.Ed. 720. Here the only difficulty presented is the appellee’s work record. Is this rather extensive work record such a physical'fact as positively contradicts the appellee’s evidence of total permanent disability ? It is a rule of uniform application in the Federal Courts that where testimony is positively contradicted by the physical facts neither the court nor jury can be permitted to give it credence. Deadrich v. United States, supra; United States v. Harth, 8 Cir., 61 F.2d 541, 544; United States v. Kerr, 9 Cir., 61 F.2d 800, 803. Employment may be of such duration and nature that it conclusively refutes any idea that the insured might have been totally permanently disabled prior to and during such employment. Nicolay v. United States, 10 Cir., 51 F.2d 170, 173; United States v. Harth, supra. However, “The' mere fact that one has done some work after the lapse of his" }, { "docid": "3075761", "title": "", "text": "chickens, taking contracts to repair public bridges, served as game warden, and ran for Justice of the Peace, but did not carry on continuously any substantially gainful occupation. His tuberculosis became arrested in 1925, but his medical advice was that exertion would tend'to render it active again. Two physicians in general practice examined him soon after his discharge from the army and, though they kept no record and one seems to refer to the time in 1923 when Brewer was running, the chicken farm, they say they found tuberculosis early in 1919, but neither ordered him to bed. They express the opinion that he was then totally and permanently disabled. This opinion the physicians were not entitled to express so broadly and it has no probative force. United States v. Spaulding, 293 U.S. 498, 55 S.Ct. 273, 79 L.Ed. 617; United States v. Rakich, 8 Cir., 90 F.2d 137. The sole question argued before us is whether a verdict should not have been directed for the -United States. While the Veterans Administration has a broad discretion in paying war risk Insurance claims, courts and juries have no function of generosity, but must decide these as all other cases according to the law and the facts. When the insured ceases to pay his premiums his insurance after thirty days lapses, unless already matured by a then existing total and permanent disability. The claimant must show by a preponderance of evidence that an inability then existed to carry on continuously any substantially gainful occupation, and that the circumstances then were such as to make it reasonably certain that such inability would continue the remainder of insured's life. Long delay unexplained raises a factual presumption against the merit of the claim and puts a heavier burden on the claimant to show a clear case. Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492; United States v. Pfaff, 4 Cir., 93 F.2d 823; Saunders v. United States, 4 Cir., 93 F.2d 825; United States v. Rakich, 8 Cir., 90 F.2d 137. The petition claims total and permanent disability before July" }, { "docid": "17015683", "title": "", "text": "it, we are of the opinion that the case was properly so submitted. There are many cases on the question, but we are satisfied that this case is ruled by United States v. Nickle (C.C.A.) 70 F.(2d) 873, and United States v. Phillips (C.C.A.8) 44 F.(2d) 689. The permanency of the disability is unquestioned. The jury might properly infer from the work record that the janitor job was the extent of plaintiff’s ability to work at a gainful occupation and that he coüld not do this work without substantial assistance, and that the occupation considering the cost of assistance was nor gainful. The evidence of plaintiff as to his total disability is corroborated by medical testimony from an examination made prior to the time the insurance policy lapsed. Although plaintiff owned his home, he had not even cut the grass and, in addition to the aid of his wife, two-fifths of his small wages had to be given to others to help him in his work at the church. “The mere fact that one has done some work after the lapse of his policy is not of itself sufficient to defeat his claim of total permanent .disability.” Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 276, 78 L.Ed. 492. The court fairly submitted the question of fact to the jury and we find no error in his having done so. Affirmed." }, { "docid": "11975477", "title": "", "text": "he worked for the New York Central Railroad, he made application for membership in its Mutual Relief Association, in which application he stated that' he had not suffered any mental infirmity. Appellant was appointed his guardian in 1928 because of his incompetency and incapacity and the guardianship continued to the time of the trial. The veteran was an employee of the Ohio Engineering Company from May 9, until October 1, 1930, and from April 23, to May 20, 1931, during which periods he earned, a total of $400.92. His eccentricities continued during the periods of his different employments. His work record aside, we cannot say as a matter of law that the veteran was not totally and permanently 'disabled before his policy expired. There was direct and substantial evidence from which a jury might reasonably conclude that he was. In this respect the case differs from United States v. Lyle, 54 F.(2d) 357 (C.C.A. 6), which the District Court regarded as controlling. In that case there was no direct evidence that Lyle was of unsound mind prior to the expiration of his policy. Here the determinative question is whether the extent and character of the veteran’s work record completely refutes the evidence tending to show that he was totally and permanently disabled before August 29, 1919. We cannot say as a matter of law that it does, when viewed in the light most favorable to him. In Lumbra v. United States, 290 U.S. 551, 558, 54 S.Ct. 272, 275,^ 78 L.Ed. 492, the court said: “The phrase ‘total permanent disability’ is to be construed reasonably and having regard to the circumstances of each case”; and 290 U.S. 551, at page 560, 54 S.Ct. 272, 276, 78 L.Ed. 492, “The mere fact that one has done some work after the lapse of his policy is not of itself sufficient to defeat his claim of total permanent disability. He may have worked when really unable and at the risk of endangering his health or life. But manifestly work performed may be such as conclusively to negative total permanent disability at the earlier" }, { "docid": "11975479", "title": "", "text": "time.” So that the extent and character of the veteran’s industrial record is not always determinative. A material inquiry was whether he was able to work. That question was determined against the veteran as a matter of law. The District Court said, “Now, the evidence here is perfectly clear that he was able to work because he worked, and worked very substantially for very substantial periods.” Thus, the court refuted the veteran’s claim by reference to his own conduct. It is true that a veteran’s acts and statements might so clearly indicate his own disbelief that he was totally and permanently disabled as to warrant a directed verdict against him. See Lumbra v. United States, supra, 290 U.S. 551, at page 560, 54 S.Ct. 272, 276, 78 L.Ed. 492. This is especially true where the ailment complained of is purely physical, but we are dealing with a different situation. The veteran was suffering with a pronounced type of catatonic dementia praecox, a progressive and incurable mental disease. The permanency of the malady and the inevitableness of resulting total disability were reasonably predictable during the life of the policy and so caused it to mature. In this aspect the case is differentiated from the Lumbra Case and United States v. Gwin, 68 F.(2d) 124 (C.C.A. 6).. The Lumbra Case did not involve dementia praecox and the opinion in the Gwin Case indicates nothing more than “incipient de mentía praecox” at the time the policy was alleged to have lapsed. It did not appear that Gwin’s disease was the severe, catatonic type, during the life of the policy. We think that the determination of whether the veteran’s industrial record destroyed his claim necessitates a finding upon the debatable question whether he acted upon sound judgment, or, affected by the vagaries of a disordered mind, took risks with his health or life. This question is peculiarly .one for the consideration of a jury. Appellee urges upon the authority of the Lumbra Case that the delay in bringing suit from August 29, 1919, to October 10, 1932, was strong evidence that the veteran was" }, { "docid": "13260403", "title": "", "text": "continue throughout life, he may not lapse his policy and then, if the disease later reaches a point where the conditions are such as to make it reasonably certain that he will not recover, treat the poliey as having matured as of the date of the lapse. 'He can only collect his insurance under such circumstances if he keeps the policy alive by the payment of premiums until his total disability becomes also a permanent disability.” It is to be presumed that any appreciable degree of disability is attended by discomfort, pain, or, at least, by inconvenience and handicap in the discharge of the normal activities of life. If such conditions are to be deemed sufficient to warrant recovery under the terms of a war risk policy, then the precision with which the degree of disability, necessary for such recovery, has been defined was wholly unnecessary. Appellee sustained a severe wound while in service on the field of battle. It is no doubt a: serious handicap in the pursuit of a substantially gainful occupation. He' is entitled to' compensation commensurate with the disability he has suffered. If that he now receives is inadequate, the law provides opportunity for review, and for increase, if that is found to’ be warranted. USCA title 38, § 494, p. 235; Hines v. United States ex rel. Livingston, 59 App. D. C. 363, 42 F.(2d) 347. But we cannot approve recovery upon a contract of insurance, the express and crucial’terms of which have obviously not been met. The judgment below, must be reversed and remanded for further proceedings not inconsistent with this opinion. It is so ordered." }, { "docid": "23188061", "title": "", "text": "68 F.(2d) 112, and United States v. Sauls, 65 F. (2d) 886, this court held that similar testimony should be excluded.” The Circuit Court of Appeals for the Fifth Circuit, in Miller v. U. S., 71 F.(2d) 361, 362, decided June 8, 1934, held that the testimony of the physician that in his opinion the veteran was totally and permanently disabled was insufficient evidence of the fact to take the ease to the jury. In view of the fact that this decision calls attention to and is in part based upon the recent decision of the Supreme Court in Lumbra v. United States, 290 U. S. 551, 54 S. Ct. 272, 275, 78 L. Ed. 492, as to what constitutes permanent and total disability within the meaning of the war risk insurance policy, we quote from the opinion in Miller v. U. S., supra, as follows: “The history of the matter is this: The War Risk Insurance Act of 1917 (40 Stat. 398) provided in separate articles for compensation for death or disability contracted in the line of duty, and for insurance against death or total permanent disability. Total permanent disability was not defined by the act. On March 9, 1918, it was ruled both as to compensation and insurance that any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation shall be deemed to be total disability, and that the disability shall be deemed permanent whenever it is founded upon conditions which render it reasonably certain that it will continue throughout the life of the person suffering it. T. D. 20 W. R. The courts generally accepted this as a correct definition of the total permanent disability insured against, but it was said in Lumbra v. United States, 290 U. S. 559, 54 S. Ct. 272, 78 L. Ed. 492, not to be an exact definition of total permanent disability or the sole guide by which that expression is to be construed in term insurances. * * * “Regulations aside, the evidence did not warrant a finding of" }, { "docid": "21531007", "title": "", "text": "when the ■ first nonpayment of premium' occurred, that is, before lack of ambition and initiative became chronic and seemingly permanent. Miller v. U. S., 294 U.S. 435, 441, 55 S.Ct. 440, 442, 79 L.Ed. 977. “Total and permanent disability” is a disability which permanently prevents a claimant from following any substantially gainful occupation. Miller v. U. S., supra. Total disability, it is true, may appear when the performance of the labor seriously aggravates a disability as in diseases like tuberculosis. Likewise, to be a legal excuse for nonpayment of premiums, total and permanent disability must exist before the premiums are due and unpaid. From all the evidence we are unable to make out a case of total and permanent disability existing when plaintiff defaulted in his premium payments. The judgment is reversed with directions to proceed in accordance with the views here expressed. Cooley’s Briefs on Insurance, volume 6, pages 5536, 5555; Corrigan v. U. S. (C.C.A.) 82 F.2d 106; U. S. v. Frost (C.C.A.) 82 F.2d 152; Miller v. U. S., 294 U.S. 435, 55 S.Ct. 440, 79 L.Ed. 977; Ruling Case Law, Insurance, § 491, & Supplements; Notes in 24 A.L.R. 205; 51 A.L.R. 1048; 79 A.L.R. 857; 98 A.L.R. 788; Lumbra v. U. S., 290 U.S. 551, 559, 54 S.Ct. 272, 275, 78 L.Ed. 492." }, { "docid": "3738910", "title": "", "text": "disability of the veteran within the meaning and during the life of the contract of insurance. The court, being without aid from the decision in Lumbra v. United States, 290 U. S. 551, 54 S. Ct. 272, 78 L. Ed. 492, later rendered, refused the motion. On submitting the ease the plaintiff had a verdict. The government appealed, raising the question presented on its motion for a directed verdict. Conformably with the rule, it assumed as established all the facts that the evidence supporting the plaintiff’s claims reasonably tends to prove and all inferences fairly dedueible from them. Gunning v. Cooley, 281 U. S. 90, 94, 50 S. Ct. 231, 74 L. .Ed. 720. The law applicable to this ease may be summarized as follows: “The basic law and the decided cases establish the propositions that recovery may not be had on a contract of war risk insurance for temporary total disability, Mason v. United States (C. C. A.) 63 F.(2d) 791; or for permanent partial disability, United States v. Thomas (C. C. A.) 64 F.(2d) 245; or for total permanent disability occurring after the expiration of the policy, United States v. McGrory (C. C. A.) 63 F.(2d) 697; and that it is incumbent upon the plaintiff suing on such a poliey to show by substantial evidence that when the insurance was in force he was totally disabled and that such total disability was reasonably certain to continue permanently. United States v. McGrory (C. C. A.) 63 F. (2d) 697.” United States v. Caldwell (C. C. A.) 69 F. (2d) 200, 201. In looking for evidence of the requisite quality, we turn first to the history of the veteran’s health when the poliey was in force and to the subsequent history only as it bears on his condition when the policy was alive. The plaintiff produced several lay witnesses who testified that subsequent to the expiration of the poliey the veteran was ailing. Aside from this testimony, which had little bearing on his condition before the poliey lapsed, she produced three physicians who, though not having examined the veteran when" } ]

[ { "docid": "23485294", "title": "", "text": "more leave than would be granted to a non-disabled, sick- employee. Because Criado’s physician was optimistic that the leave would ameliorate her disability, the jury could find her request a reasonable accommodation. Considering the facts in the light most favorable to the verdict we find no error in the district court’s denial of IBM’s motion for a judgment as a matter of law on the issue of whether Criado’s leave request was a reasonable accommodation. F. Reason for Criado’s termination IBM asserts that it terminated Criado’s employment because of miscommunication between Dr. Woodbury and its New-York medical office, concerning her request for an extended leave period and her failure to report to work, rather than because of her disability or her need for an accommodation and, IBM says, since liability under-the ADA requires that an employer has discriminated on the basis of the employee’s disability, the district court should have granted judgment as a matter of law in its favor. However, IBM’s doctor acknowledged that the evaluations of August 4 and 12 would have supported Criado’s request for additional leave. Moreover, IBM’s position ignores its duty to accommodate under the ADA. IBM was on notice that Criado was suffering from a mental impairment and that she needed time to adjust to her exacerbated condition. “An employee’s request for reasonable accommodation requires a great deal of communication between the employee and employer[;] ... both parties bear responsibility for determining what accommodation is necessary.” Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir.1996) (also noting that “[i]n a ease involving an employee with mental illness, the communication -process becomes more difficult,” and “[i]t is crucial that the employer [is] aware of the difficulties, and help the other party determine what specific accommodations are necessary”) (internal quotations and citation omitted). • If the termination was the result of a communication mistake Criado should háVe been reinstated once her physician explained her condition and prognosis and asked for additional leave. See Bultemeyer, 100 F.3d at 1286 (holding that although physician’s letter requesting an accommodation for disabled employee came after employer’s decision" } ]

[ { "docid": "3086732", "title": "", "text": "to extend her medical leave of absence. Cehrs attempted to return to work on a part-time basis on March 2, 1994. At that time, Cehrs was informed by her supervisor, Barbara Sladewski, that she had been terminated effective January 20,1994, her original return to work date, because she had failed to fill out the paperwork necessary to extend her leave of absence. While Cehrs claims she spoke to Sladewski in late February and was led to believe that she would be placed on the schedule after March 2, 1994, Sladew-ski denies that she ever spoke to Cehrs before March 2, 1994 about her employment. On March 3,1994 Cehrs applied for rehire. On March 9, 1994, Cehrs’s new doctor, Dr. Mehle, examined Cehrs, On that date, Dr. Mehle wrote a note stating Cehrs could “return to work full-time effective immediately” Cehrs delivered this note to Windsor without delay, but Windsor never offered Cehrs reemployment. Between March and November of 1994, Windsor hired three LPNs. Also, during the time Cehrs was on medical leave, Windsor had hired one full-time Registered Nurse (“RN”). Windsor’s medical leave policy allows an employee an initial period of up to ninety days unpaid leave, plus an additional ninety day (still unpaid) extension. Windsor asserts its “official” policy is that employees may not take or extend medical leaves without filing a medical leave request form. As a matter of practice, there is evidence that Windsor has allowed employees to submit medical leave request forms on dates after the employees began their leave periods, and even after employees returned to work from medical leave. Indeed, Cehrs submitted (and Windsor accepted) her initial medical leave form after November 22, 1993, the day she began her medical leave. II. Summary Judgment Standard Rule 56(e) of the Federal Rules of Civil Procedure dictates that, where summary judgment is sought: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled" }, { "docid": "23241405", "title": "", "text": "expiration of her leave period, on March 10, 2004. In support, Regis points to the Release Form filled out by Dr. Hester on March 8, 2004, in which he stated that Bryson was “unable to return to work at this time to required work responsibilities.” (JA 244.) We have held that “an employer does not violate the FMLA when it fires an employee who is indisputably unable to return to work at the conclusion of the 12-week period of statutory leave.” Edgar v. JAC Prods., Inc., 443 F.3d 501, 506-07 (6th Cir.2006) (citing Cehrs v. Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 784-85 (6th Cir.1998) and Williams v. Toyota Motor Mfg., Ky., Inc., 224 F.3d 840, 845 (6th Cir.2000), rev’d on other grounds, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002)). The Edgar Court held that the employer did not violate the FMLA in terminating the plaintiff because both of the plaintiffs treating physicians opined that she was not able to return to work until long after her FMLA leave had expired. 443 F.3d at 514; accord Cehrs, 155 F.3d at 785 (affirming the district court’s grant of summary judgment for the employer on the plaintiffs FMLA claim because she was unable to return to work upon the expiration of her leave period); 29 C.F.R. § 825.214(b) (“If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA.”). Accordingly, we hold that Regis has carried its burden to present evidence of a legitimate, non-discriminatory reason regarding why it terminated Bryson. 4. Pretext At the pretext stage, we consider whether Bryson has adduced evidence which would enable a factfinder to conclude that Regis’s stated reason for terminating her is not the true reason and is simply a pretext for unlawful retaliation. We conclude that there are genuine issues of material fact as to what information Regis relied upon in deciding to terminate Bryson, such that summary judgment is" }, { "docid": "11832651", "title": "", "text": "for additional leave as an accommodation was not reasonable. Williams also argues that her requests for STD-approved leave doubled as requests for reasonable accommodations under the ADA. This court has previously held that medical leave can constitute a reasonable accommodation under the ADA. See Cehrs v. Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 783 (6th Cir. 1998). But even if we were to assume that Williams was qualified for her position with the accommodation of leave, her request for additional leave was unreasonable. An employer is not required to keep an employee’s job open indefinitely. This court has held that additional leave is an objectively unreasonable accommodation where an employee has already received significant amounts of leave and has demonstrated “no clear prospects for recovery.” Walsh v. United Parcel Serv., 201 F.3d 718, 727 (6th Cir. 2000). A physician’s estimate of a return date alone does not necessarily indicate a clear prospect for recovery, especially where an employee has repeatedly taken leaves of unspecified duration and has not demonstrated that additional leave will remedy her condition. See Maat v. County of Ottawa, 657 Fed.Appx. 404, 412-13 (6th Cir. 2016) (concluding that where an employee had already received substantial leave, additional leave was not a reasonable accommodation because her physician’s vague estimate of a return date was uncertain and indicated that she might need further treatment); Aston v. Tapco Int’l Corp., 631 Fed.Appx. 292, 298 (6th Cir. 2015) (concluding that additional leave was not a reasonable accommodation where an employee had already received a 26-week leave and had provided a physician’s estimate of a return date, but had also submitted evidence that she still needed another medical procedure which would require recovery time beyond that date). In the present case, AT&T provided Williams with retroactively approved STD leave and allowed her to retain her position for many months before terminating her in July 2014. Williams submitted an evaluation from Thompson that provided a return date of August 15, 2014, but Thompson stated that this date was only an estimate. Given that Williams had a history of taking leaves, that her" }, { "docid": "2232823", "title": "", "text": "the employee unable to perform the functions of the position of such employee.” An employee who secures leave under this section is entitled, upon return from such leave, to be restored to the position held. 29 U.S.C. § 2614(a)(1)(A). In this case, it was undisputed that Plaintiff suffered from a serious health condition and that, as of her termination date, she had used fifty-four of the sixty days of leave to which she was entitled under the FMLA. The Court notes that the jury was instructed that if it found a violation of the FMLA it could only award damages based upon wages for six days. The Defendant argues that Plaintiff is not entitled to an award for violation of the FMLA in light of Dr. Levy’s testimony that even if Plaintiff had not been terminated, she would not have been able to return to work for at least four weeks. The Defendant relies upon several cases in support of this argument. In Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 784 (6th Cir.1998), the Plaintiffs termination date was disputed. Plaintiff argued that her termination date was effective prior to the time her FMLA leave expired; the Defendant contended that Plaintiff was terminated after the expiration of her leave time. It was, however, undisputed that on the date her leave time ran out, she was unable to return to work. Thus, the Sixth Circuit concluded that Plaintiff did not have a cognizable claim under the FMLA. In Green v. Alcan Aluminum Corp., No. 98-3775, 1999 WL 1073686 (6th Cir. Nov.16, 1999), the plaintiff was terminated after the expiration of her FMLA leave time when it was undisputed that Plaintiff was unable to return to perform the essential functions of her position. Accord Hicks v. Leroy’s Jewelers, Inc., No. 98-6596, 2000 WL 1033029 (6th Cir. July 17, 2000). These cases are distinguishable from the case at bar. In this case, Plaintiff was terminated before her leave expired. While Defendant contends that Plaintiff was unable to return to work as of the date of her termination, this assertion is based" }, { "docid": "22986925", "title": "", "text": "termination. In Criado v. IBM Corp., 145 F.3d 437 (1st Cir.1998), IBM similarly argued that it fired Criado because of “her failure to report to work, rather than because of her disability or her need for an accommodation.” Id. at 444. The First Circuit concluded that the evidence was sufficient to uphold the jury verdict in the employee’s favor because IBM was on notice that Criado suffered from a disability. The court noted that “[a]n employee’s request for reasonable accommodation requires a great deal of communication between the employee and employer[;] ... both parties bear responsibility for determining what accommodation is necessary.” Id. (quoting Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir.1996)). The court also rejected IBM’s justification that it never received the note from Criado’s doctor requesting the leave. Instead, the court determined that IBM should have reinstated Criado as soon as it learned from her doctor of the earlier requests for leave. Id. The court relied on Bultemeyer, which held that the employer should have “reconsider[ed] the decision to terminate [a disabled employee’s] employment” when it received the physician’s letter requesting additional medical leave, even though the letter arrived after the employee was fired. Bultemeyer, 100 F.3d at 1286. Finally, the court rejected IBM’s claim that Criado was fired for excessive absenteeism and that IBM had already accommodated her by granting previous leaves. The court held that the duty to accommodate is “a continuing one.” Criado, 145 F.3d at 445 (quoting Ralph v. Lucent Techs. Inc., 135 F.3d 166, 172 (1st Cir.1998)). Like the facts in Criado, Cehrs provided notice in the form of doctor’s notes that she required additional leave. The doctor’s notes in the present case were found in Cehrs’s personnel file, raising the reasonable inference that Beil had read the notes. But even if we were to assume that Beil did not find out about the notes until March, Northeast still had the opportunity to reconsider its adverse employment action when Cehrs followed Sladewski’s advice and reapplied for a position shortly after she was terminated. Cehrs further argues that notwithstanding its" }, { "docid": "3735271", "title": "", "text": "§ 825.208(c) (2001) (an employee on paid leave “is subject to the full protections of the Act” during “the absence preceding the notice to the employee of the [FMLA] designation”). Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 94, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002). Plaintiffs absences were not designated as FMLA qualifying before his termination. As discussed above, however, Defendant Ford was potentially on notice of Plaintiffs need for FMLA protected leave. After Defendant Ford mailed the five day quit notice, Plaintiffs treating physician sent Defendant Ford a facsimile stating Plaintiff was unable to work until further notice. On March 22, 2001, Plaintiffs treating physician also orally told a Ford physician that Plaintiff should be off work. That same day an employee from Defendant’s Labor Relations office requested information from the medical department regarding Plaintiffs absences. The medical department had no information, even though the facsimile was received a few weeks before and the conversation between the parties’ respective physicians occurred earlier that day. Therefore, Plaintiff may have enjoyed the protection of the FMLA before an actual designation by Defendant Ford that the absences were or were not FMLA qualifying. Thus, a reasonable jury could find that the third and final requirement of a prima facie case has been satisfied. That is, a causal connection might exist between his termination and his availment of his rights under the FMLA. C. Plaintiffs ability to return to work after twelve weeks Defendant Ford next argues that even if Plaintiff can establish a prima facie case, his claim must be denied because Plaintiff was unable to return to work after the twelve weeks of leave allowed by the FMLA. The Sixth Circuit has ruled that an employer may terminate an employee before the twelve week leave is tolled, if an employee is “clearly unable to return to work within the period provided by the FMLA.” Cehrs v. Northeast Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 785 (6th Cir.1998). Defendant Ford states in its brief that the “FMLA leave would have expired no later than May 23, 2001.” Def. Mot. at" }, { "docid": "22986905", "title": "", "text": "are undisputed, the parties are in disagreement over other relevant details. Cehrs, for example, claims that she spoke to Sladewski sometime after February 14, 1994, and that they discussed the possibility of Cehrs being placed on the work schedule for March. Cehrs contends that in response to her request to be placed on the schedule, Sladewski commented that she would inform Cehrs about the schedule shortly. But Sladewski denies speaking with Cehrs on that occasion. On February 28, 1994, because she never heard back from Sladewski, Cehrs claims that she arrived at Northeast to discuss the March schedule with both Sladewski and Beil. Cehrs further asserts that both Sladewski and Beil implied that Cehrs would be placed on the schedule. Sladewski and Beil, however, deny that they met with Cehrs on that date. When Cehrs called Sladewski to discuss scheduling on March 1, 1994, Cehrs claims that Sladewski informed her that Beil had terminated Cehrs’s employment as of January 20, 1994. Beil and Sladewski, on the other hand, maintain that Cehrs was terminated on February 28,1994. Beil claims that Cehrs was terminated because she failed to complete the required paperwork to extend her leave of absence. Beil specifically stated that Cehrs was not fired because of poor performance, a reduction in force, scheduling changes, or excessive absences. Following Sladewski’s advice, Cehrs applied for rehire on March 3, 1994. On March 9, 1994, Cehrs’s new treating physician (Dr. Mehle) examined Cehrs and determined that she could begin working full-time. Dr. Mehle wrote Northeast a note to this effect, and Cehrs delivered the note to Northeast. Northeast, however, did not rehire her. In stead, Northeast hired three new nurses between March and November of 1994. Northeast’s medical leave policy permits employees to take ninety days of unpaid leave and to file for a ninety-day unpaid extension, for a maximum of 180 days leave. Northeast claims that its policy permits employees to take an initial leave or to extend a leave only if they complete the proper forms in advance. Evidence exists in the record, however, that Northeast has in the past allowed" }, { "docid": "1641108", "title": "", "text": "it is clear that in this case, plaintiffs request for additional leave was not a reasonable accommodation, we must affirm the district court. Plaintiff was given a year of paid disability leave by UPS. Following that leave, plaintiff was given more than six additional months of unpaid leave to provide UPS with information concerning his alleged disability. As the district court observed, no information was forthcoming, and plaintiff, who saw multiple doctors and was represented by counsel, made no showing that the delay was attributable to his disability. Plaintiff claims that the accommodation he was asking for was more time for diagnosis and treatment by his doctors. It is possible that his June 5, 1995 phone call to Toronzo, requesting additional time for diagnosis would qualify as a request for accommodation. Plaintiff is also correct that this Circuit has recognized that a medical leave of absence can constitute a reasonable accommodation under appropriate circumstances. See, e.g., Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775 (6th Cir.1998), (finding a genuine issue of material fact as to whether an eight-week leave of absence followed by a request for an additional one-month leave was a reasonable accommodation under the ADA). However, plaintiffs request, to the extent it was made, was unreasonable. Plaintiff attempts to rely on Cehrs for the proposition that an indefinite leave of absence, no matter how potentially lengthy, can never be found to be objectively unreasonable. We disagree with plaintiffs reading of Cehrs. In Cehrs, the plaintiff had just taken a roughly eight week leave of absence for treatment of her Psoriasis. At the end of this period, plaintiffs physician determined that another months treatment was needed, and estimated that plaintiff could return to work on a part time basis by March 1, 1994. Id. at 778. The defendant ostensibly denied the request because the plaintiff had not properly filled out the required paperwork. Observing that the defendant had allowed other employees to take medical leave under similar circumstances, the court found that a genuine issue of fact existed as to whether the granting of further medical leave" }, { "docid": "11832650", "title": "", "text": "significant periods of time. Dr. Madakasira opined that Williams was “not fit for work” while she was undergoing treatment in May 2014. On June 11, therapist Debra Butler wrote that Williams was “unable to work at this time due to cognitive impairment and mood disturbance.” And Thompson noted that Williams was unable to work from April 11-30 and May 28-June 8. These excluded work days were listed in the same evaluation that recommended a flexible start time and break schedule, suggesting that Williams would have been unable to work on those dates even with the proposed accommodations. Finally, Williams herself stated in her appeal of the denial of STD leave that, from May 28 to June 9, she “could not function at work in a call center environment” and “could not focus mentally due to mental illness.” Williams has thus failed to make a prima facie showing that she would have been otherwise qualified even with these accommodations. We therefore need not consider whether these accommodations, as framed by Williams, were reasonable. b. Williams’s request for additional leave as an accommodation was not reasonable. Williams also argues that her requests for STD-approved leave doubled as requests for reasonable accommodations under the ADA. This court has previously held that medical leave can constitute a reasonable accommodation under the ADA. See Cehrs v. Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 783 (6th Cir. 1998). But even if we were to assume that Williams was qualified for her position with the accommodation of leave, her request for additional leave was unreasonable. An employer is not required to keep an employee’s job open indefinitely. This court has held that additional leave is an objectively unreasonable accommodation where an employee has already received significant amounts of leave and has demonstrated “no clear prospects for recovery.” Walsh v. United Parcel Serv., 201 F.3d 718, 727 (6th Cir. 2000). A physician’s estimate of a return date alone does not necessarily indicate a clear prospect for recovery, especially where an employee has repeatedly taken leaves of unspecified duration and has not demonstrated that additional leave will remedy" }, { "docid": "22986906", "title": "", "text": "28,1994. Beil claims that Cehrs was terminated because she failed to complete the required paperwork to extend her leave of absence. Beil specifically stated that Cehrs was not fired because of poor performance, a reduction in force, scheduling changes, or excessive absences. Following Sladewski’s advice, Cehrs applied for rehire on March 3, 1994. On March 9, 1994, Cehrs’s new treating physician (Dr. Mehle) examined Cehrs and determined that she could begin working full-time. Dr. Mehle wrote Northeast a note to this effect, and Cehrs delivered the note to Northeast. Northeast, however, did not rehire her. In stead, Northeast hired three new nurses between March and November of 1994. Northeast’s medical leave policy permits employees to take ninety days of unpaid leave and to file for a ninety-day unpaid extension, for a maximum of 180 days leave. Northeast claims that its policy permits employees to take an initial leave or to extend a leave only if they complete the proper forms in advance. Evidence exists in the record, however, that Northeast has in the past allowed employees to submit the requisite paperwork after their initial leave has begun and, in some cases, even after they have returned from leave. Cehrs brought an action against Northeast on February 21, 1995, alleging that it fired her in violation of the ADA, the FMLA, and relevant state statutes. The district court granted Northeast’s motion for summary judgment, holding that Cehrs failed to state a prima facie case under the ADA because she was not “otherwise qualified” within the meaning of the Act. In addition, the court determined that the FMLA was inapplicable because Cehrs was unable to return to work within the twelve weeks maximum leave permitted by the statute. Finally, the district court dismissed Cehrs’s state-law claims without prejudice by refusing to exercise pendent jurisdiction over them. This appeal followed. II. ANALYSIS A. Standard of Review This court reviews de novo a district court’s grant of summary judgment. E.E.O.C. v. Prevo’s Family Market, 135 F.3d 1089, 1093 (6th Cir.1998). Fed.R.Civ.P. 56(c) directs that summary judgment shall be granted if “there is no genuine" }, { "docid": "22986926", "title": "", "text": "terminate [a disabled employee’s] employment” when it received the physician’s letter requesting additional medical leave, even though the letter arrived after the employee was fired. Bultemeyer, 100 F.3d at 1286. Finally, the court rejected IBM’s claim that Criado was fired for excessive absenteeism and that IBM had already accommodated her by granting previous leaves. The court held that the duty to accommodate is “a continuing one.” Criado, 145 F.3d at 445 (quoting Ralph v. Lucent Techs. Inc., 135 F.3d 166, 172 (1st Cir.1998)). Like the facts in Criado, Cehrs provided notice in the form of doctor’s notes that she required additional leave. The doctor’s notes in the present case were found in Cehrs’s personnel file, raising the reasonable inference that Beil had read the notes. But even if we were to assume that Beil did not find out about the notes until March, Northeast still had the opportunity to reconsider its adverse employment action when Cehrs followed Sladewski’s advice and reapplied for a position shortly after she was terminated. Cehrs further argues that notwithstanding its official policy requiring an employee to submit the medical leave forms in advance, Northeast routinely distributed these forms after-the-fact to employees who required leave. Cehrs argues that she reasonably relied on this custom and practice and expected that the notes from her doctor would suffice to put Northeast on notice that Cehrs was requesting an extension of her leave. Indeed, Beil acknowledged that Cehrs would likely have been permitted to continue her leave if the proper forms had been completed. The district court, on the other hand, stated that a qualitative distinction exists between initial leave requests and leave extensions, because extensions are more predictable. It therefore concluded that an employee should have a greater responsibility for obtaining the extension forms. But this ignores the fact that Beil conceded that she probably would have sent the leave-extension forms to Cehrs if Beil had been aware of the doctor’s notes timely placed in Cehrs’s personnel file. Moreover, selective enforcement of company procedures provides little guidance for employees in need of medical leave. Cehrs claims that she" }, { "docid": "22279327", "title": "", "text": "of summary judgment. 1. Is Edgar’s claim foreclosed by Cehrs and its progeny? In Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 784-85 (6th Cir.1998), this court held that a company does not violate the FMLA when it terminates an employee who is incapable of returning to work at the end of the 12-week leave period allowed by the Act. The plaintiff in Cehrs was a nurse at an Alzheimer’s research facility who suffered from a chronic ailment that prevented her from working when it flared up. Id. at 777. Although the parties disputed the precise date on which Cehrs’s employment was terminated, the evidence indisputably showed that she was not released to resume her duties until March 1,1994— over two weeks after her FMLA leave period ended. Id. at 778. This court held that, because “Cehrs was clearly unable to return to work within the period provided by the FMLA,” the defendant was entitled to summary judgment on the FMLA claim. Id. at 785. Two unpublished decisions of this court have applied Cehrs to analogous factual scenarios. See Hicks v. Leroy’s Jewelers, Inc., 2000 WL 1033029 (6th Cir.2000) (per curiam); Green v. Alcan Aluminum Corp., 1999 WL 1073686 (6th Cir.1999). In Hicks, the pregnant plaintiff requested FMLA leave in advance of the anticipated birth of her child. Her employer, however, placed her on FMLA leave when a kidney infection required her to be hospitalized almost one month before she gave birth. 2000 WL 1033029, at *1. This court held that, although the district court had erred in granting summary judgment on the ground that the employee’s hospital stay allowed the employer to move up the start date of the leave period, the employer was nevertheless entitled to summary judgment because the employee could not have returned to work until at least 10 days after the leave period ended even if the employer had used the correct date. Id. at *3-*5. In so holding, the court in Hicks relied on both Cehrs and 29 C.F.R. § 825.214(b). The latter is a DOL regulation establishing that employees who remain" }, { "docid": "10560848", "title": "", "text": "Express Corp., 940 F.Supp. 73, 78 (S.D.N.Y.1996). The undisputed facts are that Micari was on a medical leave of absence from April 1992 through December 1993 and that he stopped coming to work sometime in May 1994. Therefore, from April 1992 through his termination on August 23, 1994, he worked approximately 5 months out of a possible 28. Neither the ADA nor the NYHRL requires an employer to tolerate absences of this magnitude. Although it is true that medical leaves of absence can be an appropriate form of accommodation contemplated by the ADA, see, e.g., Powers v. Polygram Holding, Inc., 40 F.Supp.2d 195, 198 (S.D.N.Y.1999), the cases which so hold have done so on facts where the leaves were of much shorter duration than the one taken by Micari. For example, in Powers, the court found that a seventeen-week leave of absence was not too long to render an individual legally unqualified for his job. Id.; see also Criado v. IBM Corp., 145 F.3d 437 (1st Cir.1998) (finding no error in denial of motion for judgment as a matter of law on the issue of whether a one month disability leave followed by a request for a leave of unspecified duration rendered the employee unqualified for her position); Cehrs v. Northeast Ohio Alzheimer’s Research Ctr., 155 F.3d 775 (6th Cir.1998) (finding a genuine issue of fact as to whether an eight-week leave of absence followed by a request for an additional one-month leave was a reasonable accommodation under the ADA); Rascon v. U.S. West Communications, Inc., 143 F.3d 1324 (10th Cir.1998) (finding a reasonable accommodation where employee requested a leave of absence after having been granted and taken three separate leaves of absence, each for thirty days). Where the medical leaves of absence stretch beyond a year, as here, courts have found that the employee, as a matter of law, cannot perform the essential functions of his position. See Corder v. Lucent Technologies Inc., 162 F.3d 924 (7th Cir.1998) (plaintiff had already received forty-three weeks leave in 1991, nineteen weeks in 1992, and nine weeks in 1993 before her termination);" }, { "docid": "10560849", "title": "", "text": "judgment as a matter of law on the issue of whether a one month disability leave followed by a request for a leave of unspecified duration rendered the employee unqualified for her position); Cehrs v. Northeast Ohio Alzheimer’s Research Ctr., 155 F.3d 775 (6th Cir.1998) (finding a genuine issue of fact as to whether an eight-week leave of absence followed by a request for an additional one-month leave was a reasonable accommodation under the ADA); Rascon v. U.S. West Communications, Inc., 143 F.3d 1324 (10th Cir.1998) (finding a reasonable accommodation where employee requested a leave of absence after having been granted and taken three separate leaves of absence, each for thirty days). Where the medical leaves of absence stretch beyond a year, as here, courts have found that the employee, as a matter of law, cannot perform the essential functions of his position. See Corder v. Lucent Technologies Inc., 162 F.3d 924 (7th Cir.1998) (plaintiff had already received forty-three weeks leave in 1991, nineteen weeks in 1992, and nine weeks in 1993 before her termination); Nowak v. St. Rita High School, 142 F.3d 999 (7th Cir.1998) (plaintiff missed approximately 18 months of work before being terminated); Duckett v. Dunlop Tire Corp., 120 F.3d 1222 (11th Cir.1997) (plaintiff had received approximately ten months of leave prior to termination); Rogers, 87 F.3d 755 (requested accommodation would have been an approximate one-year leave of absence). The authority cited above, as well as common sense, teaches that “there are limits to how far an employer must go in granting medical leave.” Waggoner, 169 F.3d at 488. In this case, when TWA fired Mieari, he had been absent 23 of the previous 28 months. That fact provides an additional reason which compels this Court to conclude that, as a matter of law, Mieari was unable to perform the essential functions of his job and, accordingly, was not “otherwise qualified” under the ADA. III. Nondiscriminatory Basis for Discharge TWA argues that even assuming Mieari can make a prima facie showing of discriminatory discharge, his claim nonetheless'must be dismissed because he cannot rebut TWA’s showing that it" }, { "docid": "22986924", "title": "", "text": "pretex-tual. An employee can show pretext by offering evidence that the employer’s proffered reason had no basis in fact, did not actually motivate its decision, or was never used in the past to discharge an employee. Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 883 (6th Cir.1996). Cehrs relies on the latter two methods to prove pretext. As to Northeast’s justification for discharging Cehrs, it is undisputed that Northeast has a written policy that requires each employee to submit a specific form in order to extend a leave of absence. Northeast adds that firing Cehrs for failing to properly file a request for an extension is not discriminatory because it fired another employee for the same reason. The record is unclear, however, as to whether the other employee made any attempt to inform Northeast the employee’s intention to return. In fact, the termination form for the other employee indicates that the employee never returned to work. It does not conclusively state that the failure to properly file an extension form was the cause of the termination. In Criado v. IBM Corp., 145 F.3d 437 (1st Cir.1998), IBM similarly argued that it fired Criado because of “her failure to report to work, rather than because of her disability or her need for an accommodation.” Id. at 444. The First Circuit concluded that the evidence was sufficient to uphold the jury verdict in the employee’s favor because IBM was on notice that Criado suffered from a disability. The court noted that “[a]n employee’s request for reasonable accommodation requires a great deal of communication between the employee and employer[;] ... both parties bear responsibility for determining what accommodation is necessary.” Id. (quoting Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir.1996)). The court also rejected IBM’s justification that it never received the note from Criado’s doctor requesting the leave. Instead, the court determined that IBM should have reinstated Criado as soon as it learned from her doctor of the earlier requests for leave. Id. The court relied on Bultemeyer, which held that the employer should have “reconsider[ed] the decision to" }, { "docid": "3056905", "title": "", "text": "not May 2001 as UPS argues. See Picinich Aff. at ¶ 15, Dkt. No. 44. According to a copy of a “Separation Form” signed by Robin Fey on May 9, 2001, Picinich’s short-term disability benefit terminated and his long-term disability benefit commenced on February 1, 2001. See Pl.’s Ex. 42, Dkt. No. 45. At his deposition, Wilson explained that the discrepancy on the form was due to administrative requirements, and that Picinich actually received his full salary until May 9, 2001. See Harper Aff. at Ex. 31, Wilson Dep. at 275:1-20., Dkt. No. 40. This disagreement between the parties is irrelevant, however, since it is clear that leaves of absence, including those that are paid pursuant to company policy, may be considered a reasonable accommodation. See Criado, 145 F.3d at 444. However, this alone does not relieve UPS of liability under the ADA. An employer’s duty to make reasonable accommodations is a continuing one, and will not be satisfied by a single effort. See Parker, 204 F.3d at 338. See also McAlindin v. County of San Diego, 192 F.3d 1226, 1237 (9th Cir.1999); Cehrs v. Northeast Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 784 (6th Cir.1998); Criado, 145 F.3d at 445, (quoting Ralph v. Lucent Techs., Inc., 135 F.3d 166, 171-172 (1st Cir.1998), citing Bultemeyer v. Fort Wayne Community Sch., 100 F.3d 1281, 1285 (7th Cir.1996)). As there are material questions, of fact outstanding regarding whether UPS refused to accommodate Picinich by reassigning him, or by facilitating his return to work in April 2000, the provision of disability benefits by itself will not be enough to award summary judgment to UPS on Pici-nich’s failure to accommodate claim. In summary, there are genuine issues of material fact regarding (1) whether UPS engaged in the interactive process with Picinich in April 2000 in order to facilitate his return to the Preload Manager position with accommodations, (2) whether UPS had a policy of reassigning management level employees between districts and therefore had a duty to assist Picinich in locating vacancies for positions outside the Upstate N.Y. District, and (3) whether UPS timely commenced" }, { "docid": "21136643", "title": "", "text": "87 F.3d 755, 759 (5th Cir.1996). While the Second Circuit has not specifically addressed this issue, the First, Sixth, Seventh, Tenth, and Eleventh circuits have. These decisions, coupled with our own assessment of the ADA, compel us to hold that we cannot rule, as a matter of law, that plaintiffs request for a seventeen-week leave of absence renders him legally unqualified to work. For example, in Criado, 145 F.3d 437, the plaintiff suffered from clinically diagnosed depression and requested a leave of absence, just as in the instant case. Plaintiff requested one disability leave which was granted, but was not well enough to return to work when the period of this leave had expired. The plaintiff requested additional leave, with no specific return date given, but merely provided a letter from her doctor informing the employer that she would be able to return to work if she were given more leave time. The First Circuit found no error in the district court’s denial of the employer’s motion for a judgment as a matter of law on the issue of whether plaintiffs leave request was a reasonable accommodation. Similarly, in Cehrs, 155 F.3d 775, the plaintiff requested and was granted an approximately eight-week leave of absence. At the end of this period, her condition not yet improved, plaintiff requested an additional month of leave, but defendant denied the request and fired her instead. Based on these facts, the Sixth Circuit found that a genuine issue of fact existed as to whether this leave constituted a reasonable accommodation under the ADA. Id. at 783. The Seventh Circuit adopted this same approach in a case in which an employee suffering from lupus was fired after requesting a second leave of absence. Haschmann v. Time Warner Entertainment Co., 151 F.3d 591 (7th Cir.1998). Even though medical experts called by the defendant at trial estimated that plaintiff would have required approximately three months of leave, Haschmann, 151 F.3d at 598, the Seventh Circuit held that there was sufficient evidence from which a reasonable juror could conclude that the requested medical leave would have been a" }, { "docid": "22986927", "title": "", "text": "official policy requiring an employee to submit the medical leave forms in advance, Northeast routinely distributed these forms after-the-fact to employees who required leave. Cehrs argues that she reasonably relied on this custom and practice and expected that the notes from her doctor would suffice to put Northeast on notice that Cehrs was requesting an extension of her leave. Indeed, Beil acknowledged that Cehrs would likely have been permitted to continue her leave if the proper forms had been completed. The district court, on the other hand, stated that a qualitative distinction exists between initial leave requests and leave extensions, because extensions are more predictable. It therefore concluded that an employee should have a greater responsibility for obtaining the extension forms. But this ignores the fact that Beil conceded that she probably would have sent the leave-extension forms to Cehrs if Beil had been aware of the doctor’s notes timely placed in Cehrs’s personnel file. Moreover, selective enforcement of company procedures provides little guidance for employees in need of medical leave. Cehrs claims that she reasonably relied on her prior knowledge of Northeast’s actual practice in distributing leave forms. As for Northeast’s propositions that “the termination of Ms. Cehrs was so remote from [its] acquisition of the knowledge of Ms. Cehrs’ condition that the claim of discrimination should be found refuted,” and that it is unreasonable to conclude that now it would choose to discriminate against Cehrs and terminate her employment because of her psoriasis when it had always accommodated her in past, we find these arguments unpersuasive in the summary judgment context. These arguments are more appropriate to present to a jury than as a basis for judgment as a matter of law. Furthermore, the accommodation requested by Cehrs in the instant case differs substantially from the minor rescheduling accommodated in the past. There is no reason to assume that because Northeast had accommodated Cehrs with her routine doctor visits, that it would not discriminate now when faced with a more burdensome accommodation. Based on all the above, we conclude that a genuine issue of material fact exists as" }, { "docid": "22279326", "title": "", "text": "Co., 382 F.Supp.2d 928, 933 (E.D.Mich. 2005) (applying this test to a retaliatory-discharge claim under the FMLA). If the employee satisfies these three requirements, the burden shifts to the employer to proffer a legitimate, nondiscriminatory rationale for discharging the employee. Skrjanc, 272 F.3d at 315. C. The district court did not err in concluding that no genuine issues of material fact were in dispute regarding Edgar’s ability to return to work The district court did not evaluate Edgar’s claim under either the entitlement or the retaliation mode of analysis. Instead, the district court (1) relied on this court’s decision in Cehrs for the proposition that an employer can lawfully fire an employee who is unable to return to work at the end of the FMLA leave period, even if the termination occurs before the end of the period, and (2) rejected Edgar’s theory that her case was distinguishable because the condition that prevented her from returning to work was “exacerbated” by the firing. We will follow the same order in evaluating the district court’s grant of summary judgment. 1. Is Edgar’s claim foreclosed by Cehrs and its progeny? In Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 784-85 (6th Cir.1998), this court held that a company does not violate the FMLA when it terminates an employee who is incapable of returning to work at the end of the 12-week leave period allowed by the Act. The plaintiff in Cehrs was a nurse at an Alzheimer’s research facility who suffered from a chronic ailment that prevented her from working when it flared up. Id. at 777. Although the parties disputed the precise date on which Cehrs’s employment was terminated, the evidence indisputably showed that she was not released to resume her duties until March 1,1994— over two weeks after her FMLA leave period ended. Id. at 778. This court held that, because “Cehrs was clearly unable to return to work within the period provided by the FMLA,” the defendant was entitled to summary judgment on the FMLA claim. Id. at 785. Two unpublished decisions of this court have applied" }, { "docid": "22600283", "title": "", "text": "prevented him from .performing the essential functions of his position. Therefore, he argues, he was entitled to twelve weeks’ leave under the FMLA, but he was terminated after only about six weeks. Furthermore, although Plant admits that he would not have been able to return to work within twelve weeks in any case, he argues that he should have been allowed to “stack” the FMLA leave on top of his employer-provided temporary disability leave. In any case, he adds, his FMLA leave allotment would not start to run until Morton notified him that it was designating his leave as FMLA leave, which it never did. See 29 C.F.R. § 825.208(c) (1998). Relying on Sixth Circuit precedent, the district court rejected Plant’s arguments. In Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775 (6th Cir.1998), this court held that the plaintiff could not show a violation of her rights under the FMLA, even if her employer had terminated her before she had used her entire twelve-week allotment of leave, because she was undisputably unable to return to work within twelve weeks in any case. See id. at 784-85. Because Plant similarly would not have been able to return to work until August 5, 1996, the district court found that Cehrs was directly on point and Plant could not show a violation of the FMLA. We hold that Cehrs is not applicable to this case. Although the Cehrs court appeared squarely to hold that an employee who cannot return to work within twelve weeks has no remedy under the FMLA, it did not specifically consider the problem presented in this case — that of notice by the employer that the employee’s leave is being counted against his FMLA allotment. Because there is a Department of Labor regulation, 29 C.F.R. § 825.208(c), that specifically discusses the requirement of notice by employers, and because we believe that regulation to be valid, we hold that § 825.208(c), rather than Cehrs, governs the case sub judice. The FMLA makes it clear that employer-provided leave, whether paid or unpaid, may be counted toward the twelve-week minimum" } ]

[ { "docid": "4364756", "title": "", "text": "conflict with the statutory purpose of Title VII and the state agency concurred). We therefore hold that under the work sharing agreement between the WVHRC and the EEOC, charges filed solely with the EEOC must be referred to the WVHRC before they commence proceedings before the WVHRC, as required by § 633(b). Petrelle contends alternatively that the requirements of § 633(b) are not jurisdictional and may be waived, citing EEOC v. Commercial Office Products Co., 486 U.S. 107, 117-18, 108 S.Ct. 1666, 1672-73, 100 L.Ed.2d 96 (1988) (holding that states may waive an analogous deferral provision under Title VII), and Husch v. Szabo Food Service Co., 851 F.2d 999, 1003 (7th Cir.1988) (observing that the deferral provision of the ADEA (§ 633(b)) is “subject to waiver, estoppel, and equitable tolling”). He argues that the agreement between the EEOC and WVHRC effectively waives the state’s deferral rights under § 633(b) because the state has agreed in advance to refrain from acting upon any age discrimination charge initially received by the EEOC. Petrelle is correct in observing that the WVHRC has agreed to refrain from processing charges initiated before the EEOC. The waiver occurs, however, only after the charge is “referred” to the WVHRC as provided in paragraph II(k) and the WVHRC refrains from making a written request to participate as provided in paragraph 111(f). The agreement contains no automatic waiver language which can be interpreted as an unconditional waiver by the state of its deferral rights under § 633(b). Accordingly, we reject the notion that the work sharing agreement, without referral, operates as an automatic waiver. That brings us to Petrelle’s second argument that the evidence in this case establishes that the EEOC in fact referred the charges to the WVHRC. If that occurred, not only can Petrelle claim that WVHRC waived any further right to proceed under the terms of the agreement, but he can claim that the requirements of § 633(b) were satisfied, notwithstanding the agreement. IV Petrelle argues that a presumption that a filing has been made with the WVHRC is created by 1) the terms of the" } ]

[ { "docid": "7865576", "title": "", "text": "before the end of the 300-day limitations period. Thus, while both agencies can simultaneously receive a charge, the charge is not deemed filed with the EEOC until one of the three triggering events occurs. In essence, the EEOC, after constructively receiving a complaint presented initially to a state deferral agency, holds the complaint in “ ‘suspended animation’ ” until state proceedings are terminated. Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1476 (9th Cir.1989) (quoting Love v. Pullman Co., 404 U.S. 522, 526, 92 S.Ct. 616, 618, 30 L.Ed.2d 679 (1972)). The resolution of the case before us turns on the meaning of the worksharing agreement between the NEOC and the EEOC, which Worthington argues contains an express, self-executing waiver of the NEOC’s right to the exclusive 60-day processing period. Title VII expressly authorizes the EEOC to enter into worksharing agreements with state and local agencies to promote effective enforcement of the statute. See EEOC v. Commercial Office Products Co., 486 U.S. 107, 112, 108 S.Ct. 1666, 1669-70, 100 L.Ed.2d 96 (1988); 42 U.S.C. §§ 2000e-8(b); 2000e-4(g)(1) (1988). The NEOC and the EEOC’s Denver office are parties to a worksharing agreement that “designates and establishes the NEOC as an agent of the EEOC for the purpose of receiving charges on behalf of the EEOC....” Worksharing Agreement, Para. 2. Under Paragraph 6 of the agreement, the NEOC agrees to “take primary responsibility for the processing [of] all charges originally received by the NEOC and EEOC except as provided in paragraph 7....” In Paragraph 7, the EEOC takes primary responsibility for processing certain types of charges, including “[a]ll charges received by the EEOC ... 240 or more days after the alleged act occurred.” (Emphasis added.) Paragraph 8 makes explicit the NEOC’s waiver of the 60-day processing period with regard to the specified charges: In order to avoid delay as to all charges other than those enumerated in paragraph 6 above, the NEOC hereby waives its exclusive right to process those charges for 60 days, as provided in Section 706(c) of Title VII of the Civil Rights Act of 1964," }, { "docid": "16131746", "title": "", "text": "when EEOC received the complaint, based on WSA designating the EEOC as the state agency’s agent for purposes of receiving charges, with state’s waiver of its exclusive jurisdiction period); Worthington v. Union Pacific R.R., 948 F.2d 477, 482 (8th Cir.1991) (EEOC constructively received the charge on the day it was filed with a state agency, by WSA’s provisions that agencies acted as each others’ agents, with self-executing waiver of exclusive state proceedings); Sofferin v. American Airlines, Inc., 923 F.2d 552, 556-59 (7th Cir.1991) (holding that under a worksharing agreement with a self-executing waiver, a filing with the EEOC simultaneously initiates and terminates state proceedings); Marlowe v. Bot-tarelli, 938 F.2d 807, 814 (7th Cir.1991) (same); Green v. Los Angeles County Superintendent of Sch., 883 F.2d 1472, 1479-80 (9th Cir.1989) (a filing with state agency deemed to be a filing with EEOC, by the self-executing clause of the worksharing agreement); Griffin v. Air Prods. & Chems., Inc., 883 F.2d 940, 943 (11th Cir. 1989) (worksharing agreement between EEOC and state agency created an instantaneous “constructive termination” of state agency’s proceedings). These decisions emphasize that the purpose of Title VII’s deferral structure is to facilitate the state’s wishes. See also Hong v. Children’s Mem’l Hosp., 936 F.2d 967, 971 (7th Cir.1991). Congress “clearly foresaw the possibility that States might decline to take advantage of the opportunity for enforcement afforded them by the deferral provision.” Id. (citing Commercial Office Prod., 486 U.S. at 118, 108 S.Ct. 1666 (plurality), and referring to 42 U.S.C. § 2000e-8(b)). “It therefore gave the EEOC the authority and responsibility to act when a State is ‘unable’ or ‘unwilling to act.’ ” Id. We must therefore reject Roanoke’s contention that only an investigation by VCHR staff, and not by agents of the VCHR, could comply with Title VII’s deferral provision requiring that Ms. Pur-year commence proceedings under state or local law. C. Roanoke also contends that Ms. Puryear failed to adequately allege violations of state law in the charge she filed with the EEOC. In support of this point, Roanoke again relies on our decision in Davis. However, Davis provides" }, { "docid": "16180485", "title": "", "text": "ERD, through the works-haring agreement, could properly waive its 60-day exclusivity period set forth in 42 U.S.C. § 2000e-5(e). That is precisely what the worksharing agreement accomplished in this- case. The language of the agreement is not discretionary. It waives ERD’s right to exclusive jurisdiction for all charges which are to be initially processed by the EEOC, and further provides that the EEOC will initially process all charges filed more than 240 days after the date of violation. Hunt does not assert that the state had a contrary intent in executing the worksharing agreement, and in fact concedes that the language would normally effect a waiver. We therefore hold, consistent with its plain language, that the worksharing agreement is self-executing, and therefore the waiver of exclusive jurisdiction occurred at the time that the complaint was filed with the ERD. See Marlowe v. Bottarelli, 938 F.2d 807 (7th Cir.1991) (holding that waiver provision of Illinois’ worksharing agreement was self-executing, and worked instantaneous constructive termination of the state’s jurisdiction over the charge); Ford v. Bernard Fineson Development Center, 81 F.3d 304, 308-311 (2d Cir.1996) (holding that New York’s worksharing agreement contained a self-executing waiver of the state’s right to exclusively handle discrimination claims for 60 days, and that the waiver constituted a termination under § 2000e-5(c)). Under Commercial Office Products, that constitutes a termination of the state proceeding for purposes of the statute. That interpretation is consistent with the federal regulations interpreting the statute, which provide that a charge initially presented to the state agency will be deemed filed with the EEOC: (1) upon expiration of 60 days after the charge is sent to the state agency; or (2) upon termination of the state proceeding; or (3) upon waiver by the state agency of its right to exclusively process the charge, whichever is earliest. 29 C.F.R. § 1601.13(b)(1). Here, the worksharing agreement waived the ERD’s exclusive right to process the charge when the charge was filed with the ERD, and accordingly the charge was timely filed with the EEOC. In response to that authority, Hunt asserts that the post-filing actions of ERD" }, { "docid": "11126302", "title": "", "text": "Coast Line R.R. Co., 678 F.2d 992, 1011 (11th Cir.1982) (“[T]he timely firing of an EEOC complaint is a condition precedent to a Title VII action”). Ordinarily, an ADA plaintiff must file a charge complaining about an allegedly unlawful employment practice (the “charge”) with the EEOC within 180 days of the employment practice, see 42 U.S.C. § 2000e-5(e)(l) (1994), but the period for firing a charge with the EEOC may be extended to 300 days if the complainant first files a timely charge in a state or local agency in a “deferral state.” Id. Deferral states are those that prohibit the unlawful employment practice at issue and have established state or local authorities to grant or seek relief for such practice. See Section 706(c) of Title VII, 42 U.S.C. § 2000e-5(c); 42 U.S.C. § 2000e-(e)(l). In. deferral states, “no charge may be filed [with the EEOC]... by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated....” 42 U.S.C. § 2000e-5(c). This gives the deferral state agencies notice of the alleged discrimination and an opportunity to investigate the allegations before the federal agency gets involved. See EEOC v. Commercial Office Prod. Co., 486 U.S. 107, 110, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988) (The sixty-day deferral period was included in § 706(c) “to give States and localities an opportunity to combat discrimination free from premature federal intervention ... ”). Thus, in deferral states, either a complainant must file with the state agency by the 240th day after the discriminatory act, or the state agency must terminate proceedings by the 300th day on a charge filed after the 240th day. See Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). Deferral states may also enter into worksharing agreements with the EEOC, whereby the deferral states waive the right to investigate a charge during the sixty-day deferral period. See 42 U.S.C. § 2000e-5(e)(l); 42 U.S.C. § 2000e-8(b). The deferral state’s waiver of the opportunity to investigate during the sixty-day deferral" }, { "docid": "22308191", "title": "", "text": "of time.”)- In Commercial Office Products, the Court concluded that a state agency’s waiver of the 60-day deferral period, pursuant to a worksharing agreement similar to the one in this case, “terminated” its proceedings under section 2000e-5(c), notwithstanding the provision in the workshar-ing agreement permitting the nonproc-essing party to review the charge after the initial processing party’s resolution of the case. Id. at 1669-71. Reviewing the legislative history of section 2000e-5(c), the Court concluded that the two goals underlying the deferral provisions — deference to the states and efficient processing of claims — supported the EEOC’s conclusion that waiver of the 60-day deferral period was sufficient to “terminate” the local agency's proceedings. Id. at 1671-74. Unfortunately, Commercial Office Products does not provide direct guidance in resolving the issue in this case: whether the waiver provision in a worksharing agreement is self-executing. Because the state agency sent a notice of waiver to the EEOC before the expiration of the 300-day period, the Court did not consider whether the provision in the worksharing agreement itself or the notice of waiver triggered the state agency’s waiver. We disagree with the parties that the Court’s discussion of the worksharing agreement provides any indication one way or the other whether a state’s waiver of its exclusive jurisdiction should be treated as self-executing. We refuse the parties’ invitation to read into the Court’s decision an implicit finding based on isolated language from various portions of the Court’s opinion. The EEOC argues that its regulations and procedural directives take the position that a state agency’s waiver in a workshar-ing agreement of initial processing rights for specified categories of charges causes a charge within a waived category to be deemed filed immediately with the EEOC. The EEOC argues that this interpretation is reasonable and thus entitled to deference by this court. “[I]t is axiomatic that the EEOC’s interpretation of Title VII, for which it has primary enforcement responsibility, need not be the best one by grammatical or any other standards. Rather, the EEOC’s interpretation of ambiguous language need only be reasonable to be entitled to deference.” Commercial Office" }, { "docid": "7865578", "title": "", "text": "as amended, so that the EEOC can take immediate action on such charges and effectively implement the worksharing provision of paragraph 7 above. (Emphasis added.) Relying on these provisions of the worksharing agreement, Worthington argues that state proceedings were “automatically and simultaneously instituted and terminated” on February 22, 1989, the date the NEOC and the EEOC received her charge. Because the EEOC received her charge more than 240 days after the alleged act of discrimination, Worthington asserts that it falls into the category defined in Paragraph 7 and thus was exempt from the NEOC’s exclusive 60-day processing period. She further asserts that the waiver provision of Paragraph 8 is self-executing, meaning that the NEOC did not need to take any further action for its waiver to be effective. The district court concluded that the NEOC could not have terminated its proceedings or waived its exclusive right to process the charge before February 28, 1989, the date on which the NEOC forwarded the complaint to the EEOC. The district court, however, did not consider the effect of the waiver provisions in the worksharing agreement. See slip op. at 5. A recent Supreme Court decision provides guidance on the effect of waivers in worksharing agreements, but does not resolve the precise issue before us. In Commercial Office Products, the Court held that a state agency’s waiver of the 60-day exclusive processing period under the terms of a worksharing agreement “terminated” its proceedings under 42 U.S.C. § 2000e-5(c), despite a provision in the agreement that permitted the state agency to retain the authority to reinstitute proceedings following the EEOC’s resolution of the charge. 486 U.S. at 115-16,125, 108 S.Ct. at 1671-72, 1676. While establishing that a valid waiver can immediately terminate state proceedings, Commercial Office Products failed to address whether a waiver in a worksharing agreement is self-executing. Because the state agency in Commercial Office Products had sent a notice of waiver (under the terms of the worksharing agreement) to the complainant before the 300-day period expired, id. at 113, 108 S.Ct. at 1670, the Court did not address whether the provision in" }, { "docid": "22414202", "title": "", "text": "proceedings “have been earlier terminated.” § 706(c), 42 U. S. C. § 2000e-5(c). The EEOC’s referral of a charge initially filed with the EEOC to the appropriate state or local agency properly institutes the agency’s proceedings within the meaning of the Act, and the EEOC may hold the charge in “‘suspended animation’” during the agency’s 60-day period of exclusive jurisdiction. Love v. Pullman Co., 404 U. S. 522, 525-526 (1972). In light of the 60-day deferral period, a complainant must file a charge with the appropriate state or local agency, or have the EEOC refer the charge to that agency, within 240 days of the alleged discriminatory event in order to ensure that it may be filed with the EEOC within the BOO-day limit. See Mohasco Corp. v. Silver, 447 U. S. 807, 814, n. 16 (1980). If the complainant does not file within 240 days, the charge still may be timely filed with the EEOC if the state or local agency terminates its proceedings before 300 days. See ibid. The central question in this case is whether a state agency’s waiver of the 60-day deferral period, pursuant to a work-sharing agreement with the EEOC, constitutes a “termination” of its proceedings so as to permit the EEOC to deem a charge filed and to begin to process it immediately. This question is of substantial importance because the EEOC has used its statutory authority to enter into worksharing agreements with approximately three-quarters of the 109 state and local agencies authorized to enforce state and local employment discrimination laws. See § 709(b), 86 Stat. 107-108, 42 U. S. C. § 2000e-8(b) (authorizing the EEOC to “enter into written agreements” with state and local agencies to promote “effective enforcement” of the Act); Brief for Petitioner 4 (EEOC has entered into worksharing agreements with approximately 81 of 109 authorized state and local agencies). These worksharing agreements typically provide that the state or local agency will process certain categories of charges and that the EEOC will process others, with the state or local agency waiving the 60-day deferral period in the latter instance. See, e." }, { "docid": "6566118", "title": "", "text": "process the discrimination claim. 42 U.S.C. § 2000e-5(c). The charge is not deemed filed with the EEOC until the expiration of 60 days, unless the state agency has “earlier terminated” its proceedings. Id. See also 29 C.F.R. §§ 1601.13(a)(4)(ii)(B) and (b)(1). Practically speaking, this 60-day deferral provision means that Laquaglia must have filed her claim with the NERC within 240 days of the alleged discrimination to ensure timely filing with the EEOC, or the state agency must have terminated its proceedings before expiration of the 300-day period. Laquaglia cannot satisfy the first part of the test since her claim was filed with the NERC on the 261st day. However, her claim still would be timely if the state agency earlier terminated its proceedings. The Supreme Court has held that a state “terminates” its proceedings if it has waived the 60-day deferral period in a cooperative agreement — known as a worksharing agreement — between the state agency and the EEOC. Commercial Office Prods., 486 U.S. at 112-122, 108 S.Ct. 1666. Title VII authorizes the EEOC to enter into these worksharing agreements with state agencies. See 42 U.S.C. § 2000e-8(b); 29 U.S.C. § 625(b); Commercial Office Prods., 486 U.S. at 112, 108 S.Ct. 1666. Precedent in this circuit, as well as in every other circuit that has considered the issue, has found waivers in these agreements to be self-executing, meaning that a charge filed with the state agency before the 300-day filing deadline expires is deemed automatically filed with the EEOC on that same day. See Green v. Los Angeles County Superintendent of Sch., 883 F.2d 1472, 1477-80 (9th Cir.1989). See also Ford v. Bernard Fineson Dev. Ctr., 81 F.3d 304, 312 (2d Cir.1996); Griffin v. City of Dallas, 26 F.3d 610, 613-14 (5th Cir.1994); Worthington v. Union Pacific R.R., 948 F.2d 477, 482 (8th Cir.1991); Marlowe v. Bottarelli, 938 F.2d 807, 814 (7th Cir.1991); Trevino-Barton v. Pittsburgh Nat’l Bank, 919 F.2d 874, 878-79 (3rd Cir.1990); EEOC v. Techalloy Maryland, Inc., 894 F.2d 676, 678 (4th Cir.1990); Griffin v. Air Prods. and Chems., Inc., 883 F.2d 940, 943 (11th Cir.1989). Consequently," }, { "docid": "16131737", "title": "", "text": "into what is known as a “worksharing agreement” with the EEOC, a state may elect to waive its period of exclusive jurisdiction during the deferral period, while retaining concurrent jurisdiction over the discrimination charges. See id., 486 U.S. at 117,108 S.Ct. 1666 (plurality). A state’s waiver of its right to initially process a charge thus constitutes a “termination” of its proceedings for purposes of section 706(c). See id., 486 U.S. at 114-15, 108 S.Ct. 1666. After a charge is properly filed with the EEOC, the aggrieved person may initiate a civil action based on the Title VII claims made in her EEOC charge only after receipt of a right-to-sue letter. See 42 U.S.C. § 2000e — 5(f)(1) (Title VII exhaustion of federal remedies); cf. 29 U.S.C. § 626 (aggrieved person may bring a civil action based on ADEA sixty days after filing EEOC charge). B. Roanoke contends that Ms. Puryear failed to exhaust her state administrative remedies here. It asserts that she failed to “commence” any proceedings under state or local law for purposes of Title VII and the ADEA, in that Ms. Puryear only filed her charge with the EEOC. However, when the EEOC accepted Ms. Puryear’s charge in 1998, the worksharing agreement (“WSA”) between the EEOC and VCHR had been entered into by those agencies and had been fully implemented. Indeed, Ms. Puryear’s July 1998 EEOC charge, and its August 1998 amendment, were addressed to both agencies. Roanoke argues that the interagency cooperation implemented by the WSA is fatally flawed, notwithstanding Ms. Puryear’s compliance with the requirements of those agencies. 1. First of all, Congress empowered the EEOC to enter into worksharing agreements. See 42 U.S.C. §§ 2000e-4(g)(l) (The EEOC “shall have power to cooperate with and, with their consent, utilize regional, State, local, and other agencies, both public and private, and individuals.”), 2000e-8(b) (The EEOC “may enter into written agreements with such State or local agencies and such agreements may include provisions under which the Commission shall ... relieve any person or class of persons in such State or locality from requirements imposed under this section.”). In" }, { "docid": "18577091", "title": "", "text": "statute. 42 U.S.C. § 2000e-5(d).) She argues that where there has been a waiver, the 60-day deferred requirement no longer applies, and that charges, received by the EEOC may be immediately deemed filed. Cf. Douglas v. Red Carpet Corp., 538 F.Supp. 1135, 1138-39 (E.D.Pa.1982). Under this theory, Seredinski’s retaliation charge would be deemed filed on the 280th day. Seredinski has not cited to us any reference to her having raised this argument before the district court, and thus it should be deemed waived on appeal. In any event, we note that it is not at all clear that Seredinski’s charge is one for which the PHRC would waive 60-day deferral. Under Paragraph III(c) of the Worksharing Agreement, PHRC initially processes, inter alia, “[a]ny charge where the PHRC is a party to a Conciliation Agreement or a Consent Decree which, upon mutual consultation and agreement is determined to be relevant to the disposition of the charge,” and “[a]ny charge alleging retaliation for filing a charge with PHRC or for cooperating with the PHRC.” App. at 23-24. Arguably, Seredinski’s charge falls within either or both of the categories. As the court in Douglas v. Red Carpet Corp., supra, noted, with respect to charges encompassed within Paragraph III(c), Pennsylvania continues to operate as a deferral state. Id. at 1139. Thus, the Worksharing Agreement cannot be interposed to avoid the 240-day rule of Mohasco in this case. B. ADEA Limitations Periods 29 U.S.C. § 626(c) creates a private right of action for persons aggrieved under the ADEA. As in the case of Title VII, suits by the EEOC are the preferred enforcement mechanism, and the individual employee’s right of action terminates upon the commencement of an enforcement suit by EEOC. Id. Unlike Title VII however, ADEA does not require that a “right-to-sue” letter be first obtained. Rather, a complainant must simply file a charge with the EEOC not less than 60 days before commencing suit, to permit EEOC to attempt “to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.” 29 U.S.C. § 626(d). Like Title VII, ADEA has deferral" }, { "docid": "22308190", "title": "", "text": "the 109 designated state and local fair employment practice deferral agencies that enforce state and local employment discrimination laws. Commercial Office Products, 108 S.Ct. at 1669. These agreements, like the one at issue here, typically provide that the state or local agency will process certain categories of charges and that the EEOC will process others, with the state or local agency waiving the 60-day deferral period in the latter instance. In either instance, the non-processing party to the worksharing agreement generally reserves the right to review the initial processing party’s resolution of the charge and to investigate the charge further after the initial processing party has completed its proceedings. Id. at 1669-70 (citation omitted). The Supreme Court found the use of worksharing agreements consistent with 42 U.S.C. §§ 2000e-4(g)(l) and 2000e-8(b) in Commercial Office Products. 108 S.Ct. at 1675 (“These sections clearly envision the establishment of some sort of worksharing agreements between the EEOC and state and local agencies, and they in no way preclude provisions designed to avoid unnecessary duplication of effort or waste of time.”)- In Commercial Office Products, the Court concluded that a state agency’s waiver of the 60-day deferral period, pursuant to a worksharing agreement similar to the one in this case, “terminated” its proceedings under section 2000e-5(c), notwithstanding the provision in the workshar-ing agreement permitting the nonproc-essing party to review the charge after the initial processing party’s resolution of the case. Id. at 1669-71. Reviewing the legislative history of section 2000e-5(c), the Court concluded that the two goals underlying the deferral provisions — deference to the states and efficient processing of claims — supported the EEOC’s conclusion that waiver of the 60-day deferral period was sufficient to “terminate” the local agency's proceedings. Id. at 1671-74. Unfortunately, Commercial Office Products does not provide direct guidance in resolving the issue in this case: whether the waiver provision in a worksharing agreement is self-executing. Because the state agency sent a notice of waiver to the EEOC before the expiration of the 300-day period, the Court did not consider whether the provision in the worksharing agreement itself or the" }, { "docid": "22308193", "title": "", "text": "Products, 108 S.Ct. at 1671. The EEOC’s interpretation that the waiver is self-executing is not only reasonable, but in our opinion is the only logical interpretation of the agreement. Section III.E.5 of the agreement provides that all charges received by the DFEH within 241 and 300 days after the alleged discrimination are to be processed by the EEOC. Section III.C provides in part: “In order to facilitate early resolution of [the initial processing of charges assigned to the EEOC], the DFEH waives the rights granted to it under Section 2000e-5(e) ... of Title VII to have an exclusive opportunity to resolve, for a period of 60 days, the charges assigned to the EEOC for initial processing.” Section III.F provides that “the DFEH or the EEOC may request in writing, and be granted the right to initially process any charge.” Read together, these sections unambiguously indicate that the waiver under section III.C is self-executing and that no additional steps are necessary to invoke the waiver. We agree with the EEOC that the agreement precludes the DFEH from processing waived charges unless it notifies the EEOC that it wishes initially to process a particular charge. LACOE’s argument that section III.F “negates any automatic waiver” is without merit. The EEOC’s interpretation of the agreement is also consistent with the two goals of the deferral provisions discussed in Commercial Office Products. The first, according deference to the states by providing the states a “reasonable opportunity to act under state law before commencement of any Federal proceedings,” id. at 1672, is not offended by the conclusion that the waiver provision in the worksharing agreement is self-executing. This goal is fully satisfied when states voluntarily waive that opportunity “through individually negotiated instruments.” Id. Nothing in Title VII requires that the state reiterate its waiver with each charge or provide any particular kind of notice that it does not intend to process a charge. The EEOC’s interpretation of the agreement is also consistent with the second goal of the deferral provisions, “time economy and the expeditious handling of cases.” Id. at 1673. To hold that a waiver" }, { "docid": "22308204", "title": "", "text": "or April 10. . Green argues in the alternative that even if the worksharing agreement was not self-executing, the waiver was effective on January 26, 1985 (296 days after April 10, 1984), when she received the letter from the DFEH informing her that it was waiving the initial processing of the charge. Because we conclude that the waiver contained in the worksharing agreement was self-executing and accordingly that Green’s charge was deemed timely filed when it was filed with the DFEH, we need not reach this argument. . To decide this case without considering the worksharing agreement would thus cause a \"miscarriage of justice\" or call into question \"the integrity of the judicial system,” thus satisfying the first exception under Bolker, 760 F.2d at 1042. . The Court also found its construction of section 2000e-5(c) consistent with other, related sections of Title VII. Commercial Office Products, 108 S.Ct. at 1674. . The charging party filed a charge of discrimination with the EEOC 290 days after the last act of alleged discrimination. Commercial Office Products, 108 S.Ct. at 1670. Four days later, the EEOC sent a copy of that charge, and a charge transmittal form, to the Colorado Civil Rights Division (CCRD), the state agency authorized to process charges of discrimination. The form stated that pursuant to the worksharing agreement, the EEOC would initially process the charge. Id. Prior to the expiration of the 300 day period, the CCRD returned the charge transmittal form to the EEOC indicating it waived its right under Title VII initially to process the charge. The CCRD then sent a letter to the charging party stating that it waived its right to process the charge. Id. . The EEOC relies on excerpts from several portions of the opinion in support of its position that the Court treated the waiver as occurring in the agreement itself. For example, the EEOC cites to the Court's statement that a waiver is a \"voluntary choice made through individually negotiated agreements.\" Commercial Office Products, 108 S.Ct. at 1673. This statement, however, was meant as support for the conclusion that a state's" }, { "docid": "15982153", "title": "", "text": "discrimination claims lodged in Virginia. Recognizing this overlapping jurisdiction, the two agencies have entered into a Worksharing Agreement (the “Agreement”). The Agreement designates each agency as an agent of the other for the “purpose of receiving and drafting charges.” On May 17,1997, and in accordance with the Agreement and Plaintiffs instructions, the EEOC forwarded Plaintiffs EEOC Form 5 and a transmittal form (“EEOC Form 212”) to the VCHR. Upon referral from the EEOC, and again in accordance with the Agreement, the VCHR promptly elected not to investigate Plaintiffs claim. On May 28, 1997, the VCHR returned EEOC Forms 5 and 212 to the EEOC. On September 30, 1998, the EEOC issued Plaintiff a right-to-sue letter. Plaintiff then timely filed this suit on December 23, 1998, alleging a violation of the ADA as well as breach of contract. II. LEGAL ANALYSIS Defendant has filed a motion to dismiss Plaintiffs ADA claim pursuant to Federal Rule of Civil Procedure 12(b)(1). Plaintiff bears the burden of proving that subject matter jurisdiction exists. See Evans v. B.F. Perkins Co., 166 F.3d 642 (4th Cir.1999). In analyzing a motion submitted under Rule 12(b)(1), the Court may consider evidence outside the pleadings. Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995). A. Commencing Proceedings Under State Law Before a plaintiff may sue under the ADA, she must satisfy certain administrative requirements imposed by Section 706(c) of Title VII. See 42 U.S.C. § 2000e-(5)(c). These requirements vary by state. Virginia is a “deferral state.” See Tinsley v. First Union Nat’l Bank, 155 F.3d 435, 440 (4th Cir.1998). In a deferral state, a person alleging discrimination benefits from a longer period of time in which to file her charge of discrimination. See 42 U.S.C. § 2000e-5(e) (granting a complainant in a deferral state 300, rather than 180, days in which to file a charge following the allegedly discriminatory act). This extended period of time is accompanied, however, by the requirements that the complainant “commence proceedings” with the deferral agency “under state law” before filing suit. See 42 U.S.C. § 2000e-5(c). Case law from the United States Court" }, { "docid": "17439145", "title": "", "text": "under federal law “before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated.” 42 U.S.C. § 2000e-5(c). As explained supra note 6, the D.C. Human Rights Act prohibits employment discrimination in the District of Columbia, and therefore complaining parties must initially proceed under D.C. law before filing charges with the EEOC. The EEOC has, however, entered into a worksharing agreement with the DCOHR, and under the terms of this agreement, charges filed with the EEOC are deemed simultaneously filed with the DCOHR. See Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1372-73 (D.C.Cir.2008); Fowler v. District of Columbia, 122 F.Supp.2d 37, 41-42 (D.D.C.2000). Generally, after a complaining party files a charge, the EEOC must allow the FEP agency to process it under state or local law before the EEOC can process it under federal law. See 42 U.S.C. § 2000e-5(c); 29 C.F.R. § 1601.13(a)(3)(ii), (a)(4)(ii)(B); see also Fowler, 122 F.Supp.2d at 41. This “deferral” period lasts 60 days, or until the FEP agency has terminated the local proceedings, whichever occurs earlier. Id. The DCOHR, however, has waived its exclusive jurisdiction over charges during the sixty-day deferral period, Schuler, 514 F.3d at 1373, and this waiver has the effect of simultaneously commencing and terminating proceedings under District of Columbia law upon an employee’s filing a charge with the EEOC, Fowler, 122 F.Supp.2d at 41-42 (stating that “numerous circuit courts have determined that waivers contained in worksharing agreements automatically commence and terminate state proceedings upon filing with the EEOC”); see also Equal Employment Opportunity Comm’n v. Commercial Office Products Co., 486 U.S. 107, 112-122, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988) (holding that an FEP’s waiver of its exclusive jurisdiction “terminated” state proceedings upon the complainant’s filing a charge with the EEOC). Thus, the plaintiff constructively commenced and terminated his proceedings under District of Columbia law immediately upon filing his charge with the EEOC, satisfying the requirement of 42 U.S.C. § 2000e-5(c). As a result, the court denies the defendant’s motion to dismiss based on the plaintiffs purported failure" }, { "docid": "6059516", "title": "", "text": "as soon as Ford filed his Title VII charge on the 281st day.” Id. at 310 (emphasis added). The Court concluded: When state agencies unambiguously waive their statutory right to exclusively process certain discrimination claims they (and the EEOC) have made an arrangement for the benefit of claimants ... the timeliness of a claimant’s filing therefore should not be made to depend on whether one or the other agency follows through on its undertakings under a Worksharing Agreement. Id. at 312; see also Mayo v. Securities Ind. Ass’n., No. 95 Civ. 4350, 1995 WL 608291 (S.D.N.Y. Oct. 17, 1995) (holding that the Workshare Agreement between DHR and EEOC was self-executing and stating that “nothing in Title VII, the federal regulations, or the worksharing agreement between the EEOC and the [DHR] requires the state to confirm its waiver as each new case arises.”) (citations omitted). Here, plaintiff filed her case with the EEOC. Pursuant to the Workshare Agreement, which designates the DHR and the EEOC as agents for one another for the purpose of receiving and drafting charges, the charge was deemed filed with the DHR on the same date. Plaintiffs charge, because it was “originally received by the EEOC,” falls with the category of charges over which the DHR “waives its right of exclusive jurisdiction.” (Harger Aff. Ex. C) The DHR’s waiver went into effect as soon as plaintiff filed her charge, and the EEOC could immediately proceed. Plaintiffs charge with the EEOC was thus timely filed pursuant to both § 2000e-5(e) and § 2000e-5(e)(l). B. Early Notice of Right to Sue Alternatively, BET argues that the EEOC’s notice of right to sue was a nullity and this case should be remanded to the EEOC to complete its administrative review because the EEOC is “statutorily precluded from issuing a right to sue letter to a claimant until the expiration of 180 days after the claimant has initially filed charges with the EEOC.” (Def.Mem. at 13) Here, the EEOC issued plaintiff a notice of right to sue on February 15, 1995, 15 days after plaintiff filed her charge. The relevant section," }, { "docid": "23045267", "title": "", "text": "exclusive jurisdiction period. See 29 C.F.R. § 1601.13(a)(4)(ii)(A); EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 114-16, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988) (holding that a deferral-state agency’s waiver of exclusive jurisdiction period constitutes “termination” of the state agency’s proceedings under Section 706(c), allowing the EEOC to regard charges as filed with it upon receipt); see also Ford v. Bernard Fineson Dev. Ctr., 81 F.3d 304, 308-09 (2d Cir.1996) (holding that work-sharing agreement provision that the NYSDHR waives right to 60-day exclusive jurisdiction period is self-executing “termination” of state proceedings under Section 706(c)). As a result, Ottaway has a colorable argument that Tewksbury “initially” filed with the EEOC, not the NYSDHR, and thus did not satisfy the sequential filing requirement in Section 706(e)(1). For several reasons, however, we hold that Tewksbury satisfied the sequential filing requirement and that his ADA charge is subject to the 300-day limitations period. Frist, however paradoxical it may seem, Tewksbury’s charge must be deemed to have been filed “initially” with the NYSDHR. As set forth above, the NYSDHR’s proceedings terminated upon the EEOC’s receipt of Tewksbury’s charge. However, the charge still could not be regarded as filed at the EEOC until after the NYSDHR’s proceedings were formally terminated. See 42 U.S.C. § 2000e-5(c); Mohasco, 447 U.S. at 816, 100 S.Ct. 2486; Ford, 81 F.3d at 308. And, of course, the NYSDHR proceedings cannot be deemed as terminated unless they have already begun. The NYSDHR proceedings formally began upon the EEOC’s receipt of Tewksbury’s charges because, pursuant to the Work-Sharing Agreement, it was designated as the NYSDHR’s agent for purposes of receiving claimants’ charges. See McGuirk, 997 F.Supp. at 397 (“[E]ach [agency] designate[s] the other as its agent for the purpose of receiving and drafting charges.”) (quoting 1995 Work-Sharing Agreement); 29 C.F.R. § 1626.10(c) (“Charges received by one agency under [a worksharing] agreement shall be deemed received by the other agency for purposes of [determining the timeliness of the charge].”); see generally Ford, 81 F.3d at 307 n. 5 (Work-Sharing Agreement has “the same impact on claimants as a statute or regulation.”). Thus, the" }, { "docid": "5038542", "title": "", "text": "Agreement which sets forth the categories of charges that will be processed initially by the PHRC. Plaintiff Douglas’s complaint does not fall within Paragraph III(c) of the Worksharing Agreement. See Worksharing Agreement at 5-6. The uncontroverted affidavit of Sandra Bacote, Regional Director of the Philadelphia Office of the PHRC states that the Commission has “no record of the filing of any charge by Lynn Douglas against the Red Carpet Corporation of America, or the referral of any such charge to the PHRC by the Equal Employment Opportunity Commission.” The record clearly indicates that the PHRC has not considered Douglas’s complaint against the defendants, but that the EEOC, perhaps in lieu of the PHRC, has completely processed plaintiff’s charge. The defendants contend that submission of gender discrimination charges to the ap propriate state agency in deferral states is a jurisdictional prerequisite to bringing suit pursuant to 42 U.S.C. § 2000e. Plaintiff contends that the submission of a discrimination charge is not jurisdictional and that failure to comply with Title VIPs deferral procedures is subject to waiver or tolling under the proper equitable circumstances. Recent decisions support plaintiff’s characterization of the deferral requirement. On February 24, 1982, the United States Supreme Court held that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling. The structure of Title VII, the congressional policy underlying it, and the reasoning of our cases all lead to this conclusion. Zipes, et al. v. Trans World Airlines, Inc., - U.S. -, -, 102 S.Ct. 1127, 1129, 71 L.Ed.2d 234 (1982). If the procedure set forth in 42 U.S.C. § 2000e-5(c), requiring filing with the EEOC, is not a jurisdictional prerequisite, logic dictates that timely deferral to appropriate state agencies, also set forth in 42 U.S.C. § 2000e-5(c), cannot be a jurisdictional prerequisite. The United States Supreme Court has interpreted the administrative remedies provisions of Title VII in accord with those contained in the Age Discrimination in Employment Act (ADEA), 29 U.S.C." }, { "docid": "22414203", "title": "", "text": "case is whether a state agency’s waiver of the 60-day deferral period, pursuant to a work-sharing agreement with the EEOC, constitutes a “termination” of its proceedings so as to permit the EEOC to deem a charge filed and to begin to process it immediately. This question is of substantial importance because the EEOC has used its statutory authority to enter into worksharing agreements with approximately three-quarters of the 109 state and local agencies authorized to enforce state and local employment discrimination laws. See § 709(b), 86 Stat. 107-108, 42 U. S. C. § 2000e-8(b) (authorizing the EEOC to “enter into written agreements” with state and local agencies to promote “effective enforcement” of the Act); Brief for Petitioner 4 (EEOC has entered into worksharing agreements with approximately 81 of 109 authorized state and local agencies). These worksharing agreements typically provide that the state or local agency will process certain categories of charges and that the EEOC will process others, with the state or local agency waiving the 60-day deferral period in the latter instance. See, e. g., Worksharing Agreement between Colorado Civil Rights Division and EEOC, App. to Pet. for Cert. 48a-49a. In either instance, the nonprocessing party to the worksharing agreement generally reserves the right to review the initial processing party’s resolution of the charge and to investigate the charge further after the initial processing party has completed its proceedings. See, e. g., id., at 47a. Whether a waiver of the 60-day deferral period pursuant to a worksharing agreement constitutes a “termination” of a state or local agency’s proceedings will determine not only when the EEOC may initiate its proceedings, but also whether an entire class of charges may be timely filed with the EEOC in the first instance. The facts of the instant case concretely reflect what is at stake. On March 26, 1984, Suanne Leerssen filed a charge of discrimination with petitioner EEOC. She alleged that 290 days earlier, respondent Commercial Office Products Company had discharged her because of her sex in violation of Title VII. On March 30, the EEOC sent a copy of Leers-sen’s charge and" }, { "docid": "7865573", "title": "", "text": "F.2d 604, 607 (8th Cir.1988). I. To maintain a Title YII suit, the complainant must file a timely charge with the EEOC. Owens v. Ramsey Corp., 656 F.2d 340, 342 (8th Cir.1981). In a deferral state such as Nebraska, this requires the filing of the charge within 300 days of the alleged act of discrimination. 42 U.S.C. § 2000e-5(e); Owens, 656 F.2d at 342. Under 42 U.S.C. § 2000e-5(c), a state deferral agency, such as the NEOC, has a 60-day period in which it has the exclusive right to initially process discrimination charges. Consequently, regardless of whether the charge is initially presented to the EEOC or to the state deferral agency, the charge is not deemed filed with the EEOC until the expiration of 60 days or until the state agency terminates its proceedings or waives its exclusive right to process the charge, whichever is earliest. See 29 C.F.R. §§ 1601.13(a)(4)(ii)(B), 1601.13(b)(1) (1990). Regardless of which of these three events triggers “filing” with the EEOC, the filing still must occur within the 300-day period. Id. Worthington argues that the NEOC, in a worksharing agreement with the EEOC, waived its right to the exclusive 60-day processing period with regard to certain types of charges, including hers. Because the NEOC, as an agent of the EEOC, received her charge on the 299th day and because the NEOC had previously waived its exclusive right to process her type of charge, Worthington argues that her charge was constructively received by and filed with the EEOC on the 299th day. The railroad does not dispute the effect of the waiver provisions in the worksharing agreement. Instead, it argues that the waiver provisions do not apply because Worthington did not indicate by checking the appropriate box on her complaint that she wished to have her charge filed with the EEOC as well as with the NEOC. We reject the railroad’s argument. Under the terms of the worksharing agreement, the NEOC is the authorized agent of the EEOC and is able to receive and process charges on behalf of the EEOC. Worthington filed her charge on an" } ]

[ { "docid": "23681796", "title": "", "text": "the Amended Complaint for failure to state a claim. See, e.g., City of Monroe Emps. Ret. Sys. v. Bridgestone Corp., 399 F.3d 651, 664 (6th Cir.2005). Our task is to “consider the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1951, 173 L.Ed.2d 868 (2009). A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a)(2). Although the complaint need not contain “detailed factual allegations,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), Rule 8(a)(2) of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at 1949. As the Supreme Court explained in Iqbal: “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (internal quotation marks, citations, and alterations omitted). Following Twombly and Iqbal, it is well settled that “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A claim is plausible on its face if the “plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Plausibility is not the same as probability, but rather “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (stating that factual allegations “merely consistent with liability stop[ ] short of the line between possibility and plausibility”). In reviewing the dismissal of the Amended Complaint, we are guided by the following “working principles.” Id. First, the general rule that the court must accept as true all allegations in the complaint “is inapplicable to legal conclusions.” Id. This means that conclusory recitals" } ]

[ { "docid": "20755290", "title": "", "text": "Listing Services Act, under California Civil Code § 1812.508; (4) Unfair Business Practices in violation of California Business and Professions Code §§ 17200 et seq. (“Section 17200”); (5) fraud; (6) declaratory relief concerning the validity of certain contracts due to undue influence; (7) declaratory relief concerning the validity of certain contracts due to illegality; (8) declaratory relief concerning the legality of fees collected; (9) breach of fiduciary duty; (10) legal malpractice; (11) violations of the TVPA as to a separate plaintiff subclass against separate defendants; and (12) negligent hiring. Defendants move to dismiss claims 1, 2, 3, and 5. Plaintiffs bring additional claims against Defendants that Defendants do not move to dismiss. LEGAL STANDARD A court should dismiss a complaint when its allegations fail to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A complaint need only include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “ ‘[Detailed factual allegations’ are not required.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (stating that “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations”)). The Court must accept as true all factual allegations in the complaint and must draw all reasonable inferences from those allegations, construing the complaint in the light most favorable to the plaintiff. Pollard v. Geo Group, Inc., 607 F.3d 583, 585 n. 3 (9th Cir.2010); Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir.1993). But the complaint must allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1940 (citing Twombly, 550 U.S. at 556, 127 S.Ct." }, { "docid": "8972709", "title": "", "text": "¶ 110. Plaintiffs bring this suit pursuant to sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26, which provide a private right of action for “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws.” 15 U.S.C. § 15(a). II. MOTION TO DISMISS UNDER RULE 12(b)(6) Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal of a complaint if a plaintiff fails “to state a claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Con ley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, the facts alleged must be “enough to raise a right to relief above the speculative level.” Id. The complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotations omitted). “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.” In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 218 (D.C.Cir.2010) (quoting Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). In considering a motion to dismiss under Rule 12(b)(6), the Court “must accept as true all of the factual allegations contained in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). The complaint is" }, { "docid": "11254446", "title": "", "text": "relief, Fed.R.Civ.P. 8(a) requires that the complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” While Fed.R.Civ.P. 8 “does not require ‘detailed factual allegations,’ ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Pleadings offering mere “ ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). In fact, in determining a motion to dismiss, “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation^]’ ” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Attain, 478 U.S. 265, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Further, “[flactual allegations must be enough to raise a fight to relief above the speculative level[.]” Id. Accordingly, “[t]o 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.’” Iqbal, 129 S.Ct. at 1949. A claim is plausible where “plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Plausibility “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ ” Id. (citing Fed. Rule Civ. Proc. 8(a)(2)). III. ANALYSIS A. Breach of Contract (Count I) To prevail on a breach of contract claim, a plaintiff must.prove: (1) the existence of a binding contract; (2) that the non-breaching party performed its contractual obligations; (3) that the other party failed to fulfill its contractual obligations without legal excuse; and (4) that" }, { "docid": "10548509", "title": "", "text": "Cir.1987). A facial attack asserts lack of federal jurisdiction based on the complaint alone, and the court must accept all allegations of fact in the complaint as true and construe them in the light most favorable to the plaintiffs. See Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.2003). By contrast, with a factual challenge, a court need not assume the truth of factual allegations but may hear additional evidence about jurisdiction and resolve factual disputes when necessary. See Roberts, 812 F.2d at 1177. If a defendant challenges jurisdiction by presenting evidence, then the party opposing the motion must present sufficient evidence to support the court’s subject-matter jurisdiction. See Savage v. Glendale Union High School, Dist. No. 205, Maricopa County, 343 F.3d 1036, 1040 n. 2 (9th Cir.2003). Dismissal of a complaint without leave to amend should be granted only where the jurisdictional defect cannot be cured by amendment. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.2003). B. Failure to State a Claim Rule 8(a) requires that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint must therefore provide a defendant with “fair notice” of the claims against it and the grounds for relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quotation and citation omitted). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has .facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “The plausibility, standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that" }, { "docid": "5622106", "title": "", "text": "for dismissal. See ECF Nos. 33 & 34. ANALYSIS The Graybills assert eight claims: (1) breach of contract; (2) promissory estoppel; (3) fraud; (4) violation of California’s unfair competition law, Cal. Bus. & Prof. Code § 17200; (5) negligence; (6) declaratory relief; (7) fraud and breach of fiduciary duty in the sale of the loan; and (8) fraud in the alteration of Plaintiffs’ loan application. Wells Fargo moves to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6) and — for the fraud claims — failure to allege fraud with particularity. The court sets forth the legal standards and then addresses the claims. I. LEGAL STANDARDS A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a)(2). A complaint must therefore provide a defendant with “fair notice” of the claims against it and the grounds for relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quotation and citation omitted). A complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. See id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citations and parentheticals" }, { "docid": "17352629", "title": "", "text": "the government possessed actual knowledge of his citizenship while he was detained. Discussion I. Controlling Law A. Standard of Review Federal Rule of Civil Procedure 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” This rule does not compel a litigant to supply “detailed factual allegations” in support of his claims, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007), “but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “A pleading that offers ‘labels and conclusions’... will not do.” Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955); see also In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.2007). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). To survive a Rule 12(b) motion, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). This “plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal quotations omitted); see Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (interpreting Twombly to require a “plausibility standard” that “obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible”) (emphasis omitted), rev’d on other grounds, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). On a Rule 12(b)(6) motion, the Court must accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party. Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.2008). The court may only consider the pleading itself, documents that" }, { "docid": "20449511", "title": "", "text": "v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny. Alternatively, she challenges the district court’s determination that she has not satisfied that standard. II. ANALYSIS A. Standard of Review We review a district court’s grant of a motion to dismiss de novo. Pedreira v. Ky. Baptist Homes for Children, Inc., 579 F.3d 722, 727 (6th Cir.2009). We must construe the complaint in the light most favorable to the plaintiff and accept all allegations as true. See Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir.2005). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the statement need only give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal quotation marks omitted) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). However, “[factual allegations must be enough to raise a right to relief above the speculative level” and to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955. A plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). B. Applying McDonnell Douglas at the Pleading Stage 1. The District Court Decision Humana argued in its Motion to Dismiss, and the district court found, that Keys did not state a claim of race discrimination under either § 1981 or Title VII because the Amended Complaint failed to allege facts that plausibly establish a prima facie case of race discrimination. The district court relied upon our decision in White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir.2008), which applied the burden-shifting framework of McDonnell Douglas to review of a district court’s grant of summary judgment" }, { "docid": "4566940", "title": "", "text": "of Civil Procedure. Brightpoint also filed a separate Motion to Dismiss and Motion for More Definite Statement under Rule 12(e) of the Federal Rules of Civil Procedure. DISCUSSION A. Applicable Standards Under Rules 12(b)(6), 9(b), and 12(e) Rule 7012(b) of the Federal Rules of Bankruptcy Procedure provides that Rule 12(b)(6) of the Federal Rules of Civil Procedure applies in adversary proceedings. Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a)(2). Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To withstand a Rule 12(b)(6) motion, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955; see also Elsensohn v. St. Tammany Parish Sheriffs Office, 530 F.3d 368, 372 (5th Cir.2008) (quoting Twombly, 550 U.S. 544, 127 S.Ct. at 1974, 167 L.Ed.2d 929). A claim satisfies the plausibility test “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Twombly’s plausibility standard is “not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949(internal citations omitted). While a complaint need not contain detailed factual allegations, it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twom-bly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). The “[fjactual allegations of [a complaint] 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. (quotation marks, citations, and footnote omitted). In" }, { "docid": "15071571", "title": "", "text": "known as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement of the claim” showing that the pleader is entitled to relief. Although Rule 8 “does not require ‘detailed factual allegations,’ ... it [does] demand[ ] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In other words, “a plaintiffs obligation to provide the ‘grounds’ for his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955). “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.’ ” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955); see also Fed.R.Civ.P. 12(b)(6). A claim is facially plausible when the facts pleaded “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). That is not to say that the claim must be probable, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “ ‘merely consistent with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Further, the Court need not accept as true “legal conclusions” contained in the complaint. Id. This review requires context-specific analysis involving the Court’s “judicial experience and common" }, { "docid": "3650274", "title": "", "text": "F.3d 1097, 1103-04 (9th Cir.2003). Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a)(2). The complaint must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation and modification omitted). To meet this requirement, the complaint must be supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “While legal conclusions can provide the framework of a complaint,” neither legal conclusions nor conelusory statements are themselves sufficient, and such statements are not entitled to a presumption of truth. Id. at 679, 129 S.Ct. 1937. Iqbal and Twombly therefore prescribe a two step process for evaluation of motions to dismiss. The court first identifies the nonconclusory factual allegations, and the court then determines whether these allegations, taken as true and construed in the light most favorable to the plaintiff, “plausibly give rise to an entitlement to relief.” Id.; Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). “Plausibility,” as it is used in Twombly and Iqbal, does not refer to the likelihood that a pleader will succeed in proving the allegations. Instead, it refers to whether the non-conclusory factual allegations, when assumed to be true, “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). A complaint may fail to show a right to relief either by lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1990). B. Dismissal of Claims Governed by Federal Rule" }, { "docid": "23647229", "title": "", "text": "of the Plan’s assets during the relevant time period exceed $25 million. Id. ¶ 27. The District Court concluded that Plaintiffs’ Amended Complaint did not sufficiently allege MSIM’s imprudent management of the Plan. It found that the Amended Complaint lacked allegations that MSIM inadequately investigated the merits of its investments, and instead focused on “the poor results of the investments.” (JA 218.) DISCUSSION I. Applicable Law and Standard of Review We test the sufficiency of a complaint by a familiar standard. But in affirming the dismissal of Plaintiffs’ Prudence Claim, the majority here effectively — and contrary to authority — deviates from it. To show why this is so, I briefly review what the Supreme Court has prescribed as the minimum required in order to state a claim upon which relief can be granted. Rule 8 of the Federal Rules of Civil Procedure provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To meet this standard, and thus survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The plausibility standard is not a “probability requirement.” Id. “[I]t simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence” supporting a plaintiffs claim for relief. See Twombly, 550 U.S. at 556, 127 S.Ct. 1955. A complaint thus need not contain “detailed factual allegations,” see Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; indeed, we have rejected the “contention that Twombly and Iqbal require the pleading of specific evidence or extra facts beyond what is" }, { "docid": "15916869", "title": "", "text": "III. STANDARDS OF REVIEW A. Rule 12(b)(6): Failure to State a Claim Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss a claim for “failure to state a claim upon which relief can be granted[.]” “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir.2008). This tenet — that the court must accept as true all of the allegations contained in the complaint — “is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Accordingly, “[tjhread-bare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.2011) (“[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”). Rather, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). In other words, “the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. Factual allegations that only permit the court to infer “the mere possibility of misconduct” do not show that the pleader is entitled to relief as required by Rule 8. Iqbal, 556 U.S. at 679, 129 S.Ct." }, { "docid": "7186212", "title": "", "text": "for relief to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 does not require detailed factual allegations, but “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). If a plaintiff fails to satisfy Rule 8(a), the defendant may file a motion to dismiss the plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). To defeat a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). In reviewing a Rule 12(b)(6) motion, the Court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir.2007). The Court is not bound to accept legal conclusions as true, and only a complaint that states a plausible claim for relief survives a motion to dismiss. Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937. When" }, { "docid": "17221669", "title": "", "text": "Court denies plaintiffs’ second motion to strike (Dkt. No. 28). Plaintiffs have had the opportunity to address these arguments in their briefings. III. Rule 12(b)(6) Standard To survive a motion to dismiss under Rule 12(b)(6), a complaint must satisfy the pleading requirement of Rule 8(a)(2), which requires “a short and plain statement of the claim that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); see Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.2009). “Specific facts are not necessary; • the statement need only give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (internal quotation marks omitted). However, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (citations and internal quotation marks omitted). “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.” Id. “The plausibility standard requires a plaintiff to show at the pleading stage that success on the merits is more than a ‘sheer possibility.’” Braden, 588 F.3d at 594 (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). IV. Preemption Arvest argues in its supplemental brief that the NBA and OCC regulations preempt plaintiffs’ breach of contract claims. “Business activities of national banks are controlled by the [NBA], 12 U.S.C. § 1 et seq., and regulations promulgated thereunder by [the OCC].” Watters v. Wachovia Bank, N.A., 550 U.S. 1, 6, 127" }, { "docid": "23575090", "title": "", "text": "erred by granting the motion to dismiss with prejudice without first permitting the Receiver to file an amended complaint. We affirm. I. Standard of Review We review de novo a district court’s order granting a Rule 12(b)(6) motion to dismiss based on the statute of limitations. See Middleton v. City of Chicago, 578 F.3d 655, 657 (7th Cir.2009). In doing so, we take “all well-pleaded allegations of the complaint as true and view[ ] them in the light most favorable to the plaintiff.” Santiago v. Walls, 599 F.3d 749, 756 (7th Cir.2010). To satisfy the notice-pleading standard of the Federal Rules of Civil Procedure, a complaint must provide a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In other words, the plaintiffs complaint must be sufficient to provide the defendant with “fair notice” of the plaintiffs claim and its basis. Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Supreme Court also instructs us to examine whether the allegations in the complaint state a “plausible” claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). To survive a motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’.... 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.” Id., quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955. The complaint “must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief above the speculative level.” Windy City Metal Fabricators & Supply, Inc. v. CIT Technology Financing Services, 536 F.3d 663, 668 (7th Cir.2008) (emphasis in original), quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir.2008). But a plaintiffs claim need not be probable, only plausible: “a well-pleaded" }, { "docid": "15647270", "title": "", "text": "a two-part test to determine whether to grant or deny a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The United States Court of Appeals for the Third Circuit (“Third Circuit”) has noted that these cases signify the progression from liberal pleading requirements to more “exacting scrutiny” of the complaint. Wilson v. City of Phila., 415 Fed.Appx. 434, 436 (3d Cir.2011). Initially, the court must ascertain whether the complaint is supported by well-pleaded factual allegations. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Conclusions of law can serve as the foundation of a complaint, but to survive dismissal they must be supported by factual allegations. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. These factual allegations must be explicated sufficiently to provide a defendant the type of notice that is contemplated by Rule 8. See Fed. R. Civ. P. 8(a)(2) (requiring a short and plain statement of the claim showing that the pleader is entitled to relief); see also Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). Where there are well-pleaded facts, courts must assume their truthfulness. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. Upon a finding of a well-pleaded complaint, the court must then determine whether thesé allegations “plausibly” give rise to an entitlement to relief. Id. at 679, 129 S.Ct. 1937. This is a “context specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. Plausibility compels the pleadings to contain enough factual content to allow a court to make “a reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. 544 at 570, 127 S.Ct. 1955, 167 L.Ed.2d 929). This is not a probability requirement; rather plausibility necessitates “more than a sheer possibility that a defendant has acted" }, { "docid": "20168795", "title": "", "text": "186, 192 (4th Cir.2009); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.2008). “[T]he legal sufficiency of a complaint is measured by whether it meets the standard stated in Rule 8 [of the Federal Rules of Civil Procedure] (providing general rules of pleading) ... and Rule 12(b)(6) (requiring that a complaint state a claim upon which relief can be granted.)” Id. Federal Rule of Civil Procedure 8(a)(2) requires that a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This pleading standard requires that a complaint contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In Ashcroft v. Iqbal, the United States Supreme Court stated that to survive a 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial plausibility when [a party] pleads factual content that allows the court to draw the reasonable inference that the [opposing party] is liable for the misconduct alleged.” Id. The plausibility standard “asks for more than a sheer possibility that a [party] has acted unlawfully.” Id. Rather, “[i]t requires [a party] to articulate facts, when accepted as true, that ‘show that [the party] has stated a claim entitling [them] to relief[.]” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Such “factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. “Determining whether a complaint states [on its face] a plausible claim for relief [which can survive a motion to dismiss] will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”" }, { "docid": "19122791", "title": "", "text": "the Federal Rules. In general, these requirements are provided by Fed.R.Civ.P. 8, although claims that “sound[ ] in” fraud or mistake must meet the requirements provided by Fed.R.Civ.P. 9(b). Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1103-04 (9th Cir.2003). 1. Dismissal of Claims Governed by Fed.R.Civ.P. 8 Under Fed.R.Civ.P. 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The complaint must give defendant “fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, at 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation and modification omitted). To meet this requirement, the complaint must be supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). “While legal conclusions can provide the framework of a complaint,” neither legal conclusions nor conclusory statements are themselves sufficient, and such statements are not entitled to a presumption of truth. Id. at 1949-50. Iqbal and Twombly therefore prescribe a two step process for evaluation of motions to dismiss. The court first identifies the nonconclusory factual allegations, and the court then determines whether these allegations, taken as true and construed in the light most favorable to the plaintiffs, “plausibly give rise to an entitlement to relief.” Id.; Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). “Plausibility,” as it is used in Twombly and Iqbal, does not refer to the likelihood that a pleader will succeed in proving the allegations. Instead, it refers to whether the non conclusory factual allegations, when assumed to be true, “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). A complaint may fail to show a right to relief either by lacking a cognizable legal theory or by" }, { "docid": "7657841", "title": "", "text": "12(b)(6) de novo. Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007). We accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the plaintiff. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009). Under Rule 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Two working principles underlie this standard. “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “Thus, mere ‘labels and conclusions,’ and ‘a formulaic recitation of the elements of a cause of action’ will not suffice; a plaintiff must offer specific factual allegations to support each claim.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir.2011) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955); see also Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (“[T]he pleading standard Rule 8 announces ... demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”). “Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. “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.” Id. at 678, 129 S.Ct. 1937. The complaint must offer sufficient factual allegations “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Although “[sjpecific facts are not necessary” to comply with Rule 8(a)(2), the complaint must “ ‘give the defendant fair notice of what the ... claim is and the grounds upon" }, { "docid": "5596009", "title": "", "text": "failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that: (1) the plaintiffs have failed to allege facts to support imposing liability on the HSBC defendants for the acts of a Turkish subsidiary; and (2) the complaint fails to place the HSBC defendants on notice of the claims against them, in violation of Rule 8 of the Federal Rules of Civil Procedure. The Court agrees and will dismiss the claims against the HSBC defendants. A. Legal Standards Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal of a complaint if the plaintiffs fail “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘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 Atlantic 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)); see also Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, the facts alleged must be “enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. The complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at 555, 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.” In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 218 (D.C.Cir.2010) (quoting Ashcroft v. Iqbal, 556 U.S." } ]

[ { "docid": "22657497", "title": "", "text": "Justice Kennedy delivered the opinion of the Court.\" We are called upon to resolve a series of issues regarding the law of habeas corpus, including questions of the proper application of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). We hold as follows: First, when a habeas corpus petitioner seeks to initiate an appeal of the dismissal of a habeas corpus petition after April 24, 1996 (the effective date of AEDPA), the right to appeal is governed by the certificate of appealability (COA) requirements now found at 28 U. S. C. § 2253(c) (1994 ed., Supp. III). This is true whether the habeas corpus petition was filed in the district court before or after AEDPA’s effective date. Second, when the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue (and an appeal of the district court’s order may be taken) if the,prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Third, a habeas petition which is filed after an initial petition was dismissed without adjudication on the merits for failure to exhaust state remedies is not a “second or successive” petition as that term is understood in the habeas corpus context. Federal courts do, however, retain broad powers to prevent duplicative or unnecessary litigation. I Petitioner Antonio Slack was convicted of second-degree murder in Nevada state court in 1990. His direct appeal was unsuccessful. On November 27,1991, Slack filed a petition for writ of habeas corpus in federal court under 28 U. S. C. § 2254. Early in the federal proceeding, Slack decided to litigate claims he had not yet presented to the Nevada courts. He could not raise the claims in federal court because, under the exhaustion of remedies rule explained in Rose v. Lundy, 455 U. S. 509 (1982), a federal court was required to dismiss a petition presenting" } ]

[ { "docid": "10202291", "title": "", "text": "PER CURIAM: Charles Hensley Mitchell, II, Texas prisoner # 1851936, moves for a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, which challenged his conviction of aggravated assault with a deadly weapon. He also seeks a COA to appeal the district court’s postjudgment denials of his motion for an evidentiary hearing and his motion to alter or amend the judgment under Federal Rules of Civil Procedure 59(e). The district court denied a COA when it denied Mitchell’s § 2254 petition, but it did not address the need for a COA in connection with the post-judgment rulings. To obtain a COA, a § 2254 petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This means that for Mitchell’s claims of prosecutorial misconduct and ineffective assistance of appellate counsel, which the district court denied on the merits, Mitchell must “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). He fails to make such a showing. Mitchell also challenges the district court’s finding that he procedurally defaulted his claim that the state trial court’s refusal to give the jury an instruction on self-defense violated due process, but he fails to show “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Also, Mitchell fails to show that reasonable jurists could debate whether, or agree that, his challenge to the denial of his motion for partial summary judgment is “adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). Mitchell fails to brief, and thus waived, his claims of ineffective assistance of trial counsel. Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999). With respect to these claims, we DENY a COA. A COA is required to" }, { "docid": "9579645", "title": "", "text": "of the Confrontation Clause.”) (citations omitted). Accordingly, the petition for habeas relief based on a Sixth Amendment violation is denied. D. As to a Certificate of Appealability Rule 22(b) of the Federal Rules of Appellate Procedure provides that “[i]n a ha-beas corpus proceeding in which the detention complained of arises from process issued by a state court ... the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).” Section 2253(c) provides that “[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial showing” does not require that a petitioner demonstrate that he would prevail on the merits in his appeal, but only that the issues he raises are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir.2000). In the Court’s view, the petitioner has satisfied his burden for a certificate of appealability with regard to the issue of whether New York’s depraved indifference murder statute is unconstitutionally vague. This question is debatable among jurists of reason, as evidenced by the dissents of former Court of Appeals Judges Jasen, Bellacosa, and Rosenblatt, and the opinions of Judge Brieant in the Southern District of New York. Also, the question is one which should receive further review. The Second Circuit has not yet addressed whether New York’s depraved indifference murder statute, on its face or as interpreted, violates the Constitution. On two occasions, the Court found that the question was not properly exhausted and procedurally barred, and the petitioners failed to show either “cause and prejudice” or that they were actually innocent. See St. Helen v. Senkowski" }, { "docid": "22880481", "title": "", "text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In that petition, Houser alleged due process violations in connection with prison disciplinary proceeding # 20020003898. Houser has demonstrated that reasonable jurists could debate whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000). However, he fails to establish that reasonable jurists could debate whether he has claimed a valid deprivation of his constitutional rights. See id. COA IS DENIED. The district court found that Houser failed to exhaust his state remedies because he had not filed his Step 1 grievance in a timely manner and, further, that he had failed to file a Step 2 grievance. Both of these findings are rendered questionable by the record, which indicates that Houser’s Step 1 grievance was received on the first working day beyond the fifteen-day period allotted for filing grievances and, per the Offender Grievance Operations Manual, was therefore timely. Also, contrary to the district court’s finding, the record contains a copy of Houser’s Step 2 grievance and the response issued by prison authorities. The district court’s determination of failure to exhaust is at best suspect. However, for a COA to issue, Houser must prove not only that reasonable jurists could debate whether the district court was correct in its procedural ruling, but also that reasonable jurists could find it debatable that the petition states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack, 529 at 484, 120 S.Ct. at 1603-04. This coequal portion of the appealability test “gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying claims.” Slack, id. Accordingly, we must consider whether “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Performing the" }, { "docid": "15107164", "title": "", "text": "Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny William Cooper, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(d)(3) motion seeking relief from the district court’s order denying Cooper’s 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Cooper has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED" }, { "docid": "11755177", "title": "", "text": "to the procedures imposed by the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under the AEDPA, a petitioner must obtain a COA before an appeal can be taken to this Court. See 28 U.S.C.A. § 2253(c)(2) (West 2003); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). “[W]hen a habeas applicant seeks permission to initiate appellate review of the dismissal of his petition, the court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA will be granted if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West 2003). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will riot prevail.” Id. at 338, 123 S.Ct. 1029. Finally, “[bjecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [Petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We note that under the AEDPA, federal courts are to give a level of deference to state court findings per §§ 2254(d)(2) and (e)(1). At the" }, { "docid": "13139588", "title": "", "text": "only in the event that it found that he actually attacked Vick. The court did not instruct the jury on a law of the parties theory of liability. The jury found Wright guilty, and he was sentenced to death. Wright’s conviction was affirmed on direct appeal to the Texas Court of Criminal Appeals (“TCCA”). Wright v. State, 28 S.W.3d 526 (Tex.Crim.App.2000). He petitioned the state court for a writ of habeas corpus. The state trial judge adopted the State’s proposed findings of fact and conclusions of law in their entirety and recommended that relief be denied. The TCCA adopted the trial court’s findings of fact and conclusions of law and denied relief. Wright petitioned the United States District Court for the Northern District of Texas for a federal writ of habeas corpus. A magistrate judge recommended denying relief on all of Wright’s claims. Wright v. Dretke, 3:01-CV-0472, 2004 WL 438941 (N.D.Tex. Mar.10, 2004). The district court judge adopted the magistrate judge’s recommendation and denied the petition. II We issue a certificate of appealability only when the movant has made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(e)(2). This requires him to “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). At this stage, we are not permitted to give full consideration of the factual or legal bases in support of the claim. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Instead, we merely conduct an overview of the claims and a general assessment of their merits. Id. The movant’s arguments “must be assessed under the deferential standard required by 28 U.S.C. § 2254(d)(1).” Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004); see Miller-El, 537 U.S. at 348-50, 123 S.Ct. 1029 (Scalia, J., concurring) (arguing that a court must consider 28 U.S.C. § 2254(d)’s deferential standard of review when ruling on motion for COA). A federal court may not issue a" }, { "docid": "7585281", "title": "", "text": "process. Haynes filed a habeas petition on October 5, 2005, with the District Court for the Southern District of Texas. The district court denied habeas relief in an opinion on January 25, 2007. At the end of the extensive memorandum opinion, the district court appended a relatively short sua sponte denial of COA essentially reciting the standard of review and then concluding: Under the appropriate standard the court finds that Haynes has not shown that this court should certify any issue for appellate consideration. This court DENIES Haynes a COA on all the claims raised by his petition. Id. at *37 (emphasis in original). Haynes now seeks a COA from this court to challenge the district court’s denial of habeas relief. II. STANDARD OF REVIEW A petitioner must obtain a COA before appealing the district court’s denial of habeas relief. 28 U.S.C. § 2253(c). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals ....’” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I) (quoting 28 U.S.C. § 2253(c)(1)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this requirement includes a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Id. at 484,120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). As the Supreme Court explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district" }, { "docid": "22327724", "title": "", "text": "3, 2005. Because the petition was signed on October 31, 2005, the district court deemed it filed on that date pursuant to the prisoner mailbox rule. Fed. R.App. P. 4(c). Certificate of Appealability A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We will issue a COA only if Clark makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, he must establish that “reasonable jurists could debate whether ... the petition should have been resolved [by the district court] in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). Insofar as the district court dismissed Clark’s habeas petition on procedural grounds, Clark must demonstrate both that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude ei ther that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. We review the district court’s factual findings for clear error and its legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.2001). Because Clark’s petition was filed on October 31, 2005, almost two years after his conviction became final, his petition is untimely absent statutory or equitable tolling. Clark claims statutory tolling. Section 2244(d)(1)(B) allows the limitation period to begin as of “the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.” Clark claims this provision" }, { "docid": "21875451", "title": "", "text": "AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition states a valid claim of a denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause" }, { "docid": "9442958", "title": "", "text": "appeals first issues a COA. 28 U.S.C. § 2253(c)(1) (2004); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a “jurisdictional prerequisite” without which “federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners”); Neville v. Dretke, 423 F.3d 474, 478 (5th Cir.2005). In determining whether to grant a petitioner’s request for a COA, the Supreme Court has instructed that a “court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack v. McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA mil be granted “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2004). In order to meet this standard, Pippin must demonstrate that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. Although the issuance of a COA “must not be pro forma or a matter of course,” the petitioner satisfies the burden under § 2253(c) by “demonstrating] that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. at 337-38, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Finally, any doubt as" }, { "docid": "18491602", "title": "", "text": "denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of them merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citation omitted). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the ease has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]eeause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted). III. SUPPRESSION OF EVIDENCE Avila contends that the State failed to disclose certain evidence in viola tion of his due process rights. The district court granted a COA as to this issue. The State has a duty to disclose evidence favorable to the accused that is material to guilt" }, { "docid": "11683530", "title": "", "text": "This case arises on appeal from the United States District Court for the Southern District of Texas, Houston Division, Judge Ewing Werlein, Jr. presiding. The State moved for summary judgment. On March 31, 2003, the district court granted the State’s motion for summary judgment denying Smith relief without an evidentiary hearing and dismissed the writ petition in an unpublished decision. Smith v. Cockrell, No. H-00-1771 (S.D.Tex. filed March 31, 2003). The district court also denied Smith’s COA request sua sponte. On September 22, 2003, Smith timely filed his appeal, requesting a COA from this court. Standard of review Because Smith’s federal petition for habeas review was filed on May 30, 2000, we review it under the standards articulated in the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254. To obtain a COA, the petitioner must make a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, the petitioner must demonstrate “that reasonable jurists could debate whether [] the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). In determining whether to grant a COA, our inquiry is limited to a threshold examination that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A full consideration of the merits is not required, nor permitted, by § 2253(c)(2). Id. The fact that a COA should issue does not mean the petitioner will be entitled to ultimate relief, rather “the question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. Accordingly, we must be mindful that “a claim can be debatable even though every jurist of reason might agree, after the COA" }, { "docid": "18025546", "title": "", "text": "sentence. Accordingly, the trial court sentenced Trottie to death. The Texas Court of Criminal Appeals affirmed Trottie’s conviction and sentence. Trottie v. State, No. 71,693 (Tex.Crim.App. Sept. 20, 1995). Trottie filed a petition for writ of habeas corpus in the state court in 1997. In 2008, the trial court submitted findings of fact and conclusions of law recommending a denial of habeas relief, which the Texas Court of Criminal Appeals adopted in 2009. Ex Parte Trottie, No. 70,302-01 (Tex.Crim.App. Feb. 11, 2009). Trottie then sought federal habeas relief, which the district court denied in 2011. See Trottie, 2011 WL 4591975, at *1, 20. Trottie now seeks a COA. STANDARD OF REVIEW The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Trottie’s habeas petition. Under AEDPA, a state court prisoner must obtain a certificate of appealability (“COA”) before he can appeal a federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). A COA is warranted upon a “substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). A petitioner satisfies this standard if “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The issue is “the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336,123 S.Ct. 1029. In cases involving the death penalty, “any doubts as to whether a COA should issue must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted). We evaluate the debatability of Trottie’s constitutional claims under AED-PA’s highly deferential standard, which “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (citations" }, { "docid": "13109965", "title": "", "text": "Bagwell appealed the denial of the COA on two of his habeas claims to this court. II. STANDARD OF REVIEW Bagwell’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). AEDPA requires Bagwell obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000). Hence, “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA will issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. More specifically, the petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Likewise, when the district court has rejected a claim on a procedural ground, “the petitioner must also demonstrate that ‘jurists of reason would find it debatable whether the district court was correct in the procedural ruling.’ ” Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir.2003) (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). The Supreme Court counseled that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim[.]” Id. at 331, 123 S.Ct. 1029. Instead, this court should engage in an “overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Ultimately, “[t]o prevail on a petition for writ of habeas corpus, a petitioner must demonstrate that the state" }, { "docid": "3835519", "title": "", "text": "granted Respondent’s motion, dismissed Rowell’s petition, entered a final judgment, and denied Ro-well a COA on his claims. Rowell timely filed the instant application for COA. DISCUSSION Rowell filed his § 2254 petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, his petition is subject to the procedures imposed by AEDPA; Rowell’s right to appeal is governed by the COA requirements of § 2253(c). See Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under AEDPA, a petitioner must obtain a COA before an appeal can be taken to this Court. 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). When a habeas petitioner requests permission to seek appellate review of the dismissal of his petition, this Court limits its examination to a “threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA will be granted if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Meeting this standard requires a petitioner to demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to- proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). At issue is the debatability of the underlying constitutional claim, but not the resolution of that debate. Id. at 342, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has" }, { "docid": "18491601", "title": "", "text": "or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court’s decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404-08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision constitutes an unreasonable application of clearly established federal law if it is “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. Further, pursuant to section 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir.2001). Additionally, under AEDPA, a petitioner must obtain a Certificate of Appealability (COA) before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of them merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s" }, { "docid": "9425038", "title": "", "text": "court denied a certificate of COA. Under AEDPA, a petitioner cannot appeal the district court’s ruling on a particular issue without first obtaining a COA for that issue from either a district judge or a circuit judge. 28 U.S.C. § 2253(c); Valerio, 306 F.3d at 763. A COA should be granted if a petitioner can show that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong,” or, in the case of a district court procedural ruling, reasonable jurists would find it debatable both “whether the petition states a valid claim of the denial of a constitutional right” and “whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Only after we have decided whether a COA should issue may we adjudicate a particular claim’s merits. Miller-El v. Cockrell, 537 U.S. 322, 336-37, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A Ybarra first seeks a COA on the issue of whether the district court improperly required him to abandon the unexhausted claims in his 2002 habeas petition. We deny a COA on this issue because we find that it is not reasonably debatable. A district court must be free to manage complex habeas corpus litigation by imposing reasonable constraints on the orderly presentation of the claims. If a habeas petition is “mixed” such that it includes both unexhausted and exhausted claims, a district court must dismiss it, leaving the petitioner an option to either abandon the unexhausted claims or return to state court to exhaust them. Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The Supreme Court has made it clear that “it would be appropriate for an order dismissing a mixed petition to instruct an applicant that upon his return to federal court he is to bring only exhausted claims.” Slack, 529 U.S. at 489, 120 S.Ct. 1595 (emphasis added). This is exactly what the district court’s 1993 order did. After noting that “a federal court may not address the merits of any grounds" }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "14010033", "title": "", "text": "denied. II To receive a COA, Cardenas must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In capital cases, doubts about whether the petitioner has met the standard must be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). When a petition is dismissed on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). At the COA stage, a court should “limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider “the factual or legal bases adduced in support of the claims,” and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 120 S.Ct. 1595. The district court should evaluate the habeas petition to see if the state court’s determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it “resulted in a decision that was based on an unreasonable determination of the facts in light" }, { "docid": "1635855", "title": "", "text": "were affirmed on direct appeal by the Texas Court of Criminal Appeals (CCA). Ward v. State, No. AP-75750, 2010 WL 454980, at *1 (Tex. Crim.App. Feb. 10, 2010). While his direct appeal was pending, Ward sought state habeas relief. The state trial court issued a report and findings recommending denial of habeas relief without an evidentiary hearing. Ex parte Ward, No. WR-70651-02, 2010 WL 3910075, at *1 (Tex.Crim. App. Oct. 6, 2010). The CCA adopted the trial,-judge’s findings and conclusions in part, and denied Ward’s habeas petition in an unpublished decision. Id. One year later, Ward filed the instant federal habeas corpus petition in federal district court. Ward asserted five federal claims for habeas relief. The district court denied his petition in its entirety and denied his request for a certificate of appeal-ability. Ward now seeks our permission to appeal three of the five claims that the district court rejected. II. JURISDICTION AND STANDARD OF REVIEW To appeal the district court’s denial of his habeas petition, Ward must first obtain a COA pursuant to 28 U.S.C. § 2253(c)(1). See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Because the district court did not grant a COA on any of Ward’s claims, we have jurisdiction at this juncture only to consider whether a COA should issue, and not the ultimate merits of his claims. E.g., 28 U.S.C. § 2253(c); Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029. A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists. could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Specifically, “the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Feldman v. Thaler, 695 F.3d 372, 377 (5th Cir.2012) (alteration omitted) (quoting Slack v. McDaniel, 529 U.S." } ]

[ { "docid": "10402154", "title": "", "text": "section is an exemption from the surtax provisions applicable to corporations in general and should bd strictly construed. It does not apply to all banks so organized, but only to those a substantial part of the business of which consists of receiving deposits and making loans and discounts. Petitioner’s power to receive money from customers was limited to the proceeds of sale of certificates of investment or similar obligations. Its charter contains no right to accept deposits, subject to checks or otherwise, as banks are authorized to do. That is one of the chief distinctions between petitioner and a bank. To support his argument, petitioner refers to reports of committees of Congress. In its report on the Revenue Act of 1936, the Committee on Ways and Means said: Banks and trust companies are not brought within the new plan, but pay a flat rate of tax of 15 percent on their net income and domestic corporations in receivership are treated in the same manner. This seems to be a wise public policy, since the surplus of banks must be built up for the protection of the depositors and because receiverships in the vast majority of cases cannot, of course, pay dividends. Bor similar reasons there is a flat tax of 15 percent on the net income of all insurance companies whether domestic or foreign. The report of the Committee on Finance, Report No. 2156, p. 13, contains no additional light on the intent of the section. These reports merely disclose the reason for the exemption and contain nothing to show that the committees intended the term “bank” to embrace more than the definition in the statute. We conclude that to be entitled to the benefits of section 104 petitioner must show that it was organized and doing business as a bank under the laws of Virginia. Was it such an institution during the taxable years ? State banks of Virginia are defined in and regulated by the provisions of chapter 164-A of the Virginia Code of 1936, known as the Banking Code. Virginia corporations organized to conduct an industrial loan" } ]

[ { "docid": "10402152", "title": "", "text": "OPINION. Disney : In his determination of the deficiencies the Commissioner held that the petitioner was not a bank within the meaning of section 104 of the Revenue Act of 1936 and accordingly applied the surtax provisions of the statute to the undistributed net income of the petitioner each taxable year. The question is whether petitioner comes within the definition of a bank in section 104, supra. Section 104 (b) of the applicable revenue act provides for the taxation of banks in the same manner as other corporations, except that they shall not be subject to the surtax imposed by section 14 and the rate of normal tax shall be 15 per centum instead of the rates provided in section 13. Section 104 (a) provides: As used in tins section the term “bank” means a bank or trust company incorporated and doing business under the laws of the United States (including laws relating to the District of Columbia), of any State, or of any Territory, a substantial part of the business of which consists of receiving deposits and making loans and discounts, or of exercising fiduciary powers similar to those permitted to national banks under section 11 (k) of the Federal Reserve Act, as amended, and which is subject by law to supervision and examination by State or Federal authority having supervision over banking institutions. The petitioner contends that the term “bank” was used in section 104 by Congress in its commonly accepted sense and is not confined to banks organized under the banking laws of Virginia. It makes no contention that it is a trust company and the proof is clear that it did not exercise fiduciary powers. Respondent contends that petitioner was neither formed nor doing business as a “bank” under the laws of Virginia and therefore does not meet the test set forth in the revenue act. The contention of petitioner will be considered first. The term “bank” as used in section 104 means “a bank * * * incorporated and doing business under the laws of * * * any State.” Sec. 104 (a), supra. The" }, { "docid": "10402153", "title": "", "text": "receiving deposits and making loans and discounts, or of exercising fiduciary powers similar to those permitted to national banks under section 11 (k) of the Federal Reserve Act, as amended, and which is subject by law to supervision and examination by State or Federal authority having supervision over banking institutions. The petitioner contends that the term “bank” was used in section 104 by Congress in its commonly accepted sense and is not confined to banks organized under the banking laws of Virginia. It makes no contention that it is a trust company and the proof is clear that it did not exercise fiduciary powers. Respondent contends that petitioner was neither formed nor doing business as a “bank” under the laws of Virginia and therefore does not meet the test set forth in the revenue act. The contention of petitioner will be considered first. The term “bank” as used in section 104 means “a bank * * * incorporated and doing business under the laws of * * * any State.” Sec. 104 (a), supra. The section is an exemption from the surtax provisions applicable to corporations in general and should bd strictly construed. It does not apply to all banks so organized, but only to those a substantial part of the business of which consists of receiving deposits and making loans and discounts. Petitioner’s power to receive money from customers was limited to the proceeds of sale of certificates of investment or similar obligations. Its charter contains no right to accept deposits, subject to checks or otherwise, as banks are authorized to do. That is one of the chief distinctions between petitioner and a bank. To support his argument, petitioner refers to reports of committees of Congress. In its report on the Revenue Act of 1936, the Committee on Ways and Means said: Banks and trust companies are not brought within the new plan, but pay a flat rate of tax of 15 percent on their net income and domestic corporations in receivership are treated in the same manner. This seems to be a wise public policy, since the surplus" }, { "docid": "2019928", "title": "", "text": "element of Virginia Code § 18.2-479(B) is hardly dispositive. A statute need not proscribe “force” or “violence” in so many words for a conviction under its provisions to be deemed a violent one. And while Mathias is correct that the first clause of § 924(e)(2)(B) defines as violent felonies those which have “as an element the use, attempted use, or threatened use of physical force against the person of another,” he altogether ignores the second clause of § 924(e)(2)(B). That provision makes no mention of “force” or “violence” — much less suggest that “force” or “violence” is a required element. Rather, as we have noted above, the appropriate inquiry is risk: under § 924(e)(2)(B)(ii), violent felonies include those which “otherwise in-volv[e] conduct that presents a serious potential risk of physical injury to another.” To adopt Mathias’ approach and conclude that the second clause of § 924(e) only reaches conduct that is itself violent (and thus covered by the first clause of § 924(e)), would render the “otherwise” clause of § 924(e) superfluous. But it is “a classic canon of statutory construction that courts must ‘give effect to every provision and word in a statute and avoid any interpretation that may render statutory terms meaningless or superfluous.’ ” Discover Bank v. Vaden, 396 F.3d 366, 369 (4th Cir.2005) (quoting United States v. Ryan-Webster, 353 F.3d 353, 366 (4th Cir.2003)); see also Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (same). III. For the foregoing reasons, we conclude that Mathias’ felony escape conviction under Virginia Code § 18.2-479(B) is a “violent felony” as defined by the ACCA. Mathias’ sentence is affirmed. AFFIRMED. . Codefendant Cooper pled guilty to possession of a firearm by a convicted felon and aiding and abetting the same conduct. He was sentenced to 120 months’ imprisonment. Cooper appealed. This court affirmed, finding Cooper’s sentence to be reasonable. United States v. Cooper, 211 Fed.Appx. 193, 194 (4th Cir.2006). Codefendant Deberry also pled guilty to possession of a firearm by a convicted felon and aiding and abetting; he was sentenced to 120 months’ imprisonment." }, { "docid": "16845540", "title": "", "text": "of statutory construction. See generally, Xianli Zhang, et al. v. United States, 89 Fed.Cl. 263 (Fed.Cl.2009) (and cases cited therein). Plain Language In construing the statutory requirements of the Internal Revenue Code, “we begin with its literal text, giving it its plain meaning.” See USA Choice Internet Servs., LLC v. United States, 522 F.3d 1332, 1336 (Fed.Cir.2008) (quoting Hawkins v. United States, 469 F.3d 993, 1000 (Fed.Cir.2006)); see also, Gitlitz v. Commissioner, 531 U.S. 206, 219-220, 121 S.Ct. 701, 148 L.Ed.2d 613 (2001) (Court relied upon plain text of Internal Revenue Code, despite countervailing policy concern). Under Code sections 51(b)(1)-(2) and 51A(b)(1), an employer’s eligibility for work opportunity and WtW tax credits requires the employees for whom it is claiming credits to be members of targeted groups. Sections 51(d)(2)-(9) and 51A(c) define each targeted group. Each subsection includes a procedural certification requirement in addition to substantive requirements: a member of a targeted group is an individual “who is certified by the designated local agency” as having certain characteristics. For example: The term “qualified SSI recipient” means any individual who is certified by the designated local agency as receiving supplemental security income benefits under title XVI of the Social Security Act (including supplemental security income benefits of the type described in section 1616 of such Act or section 212 of Public Law 93-66) for any month ending within the 60-day period ending on the hiring date. Code § 51(d)(9). Thus, the statute indicates that official, statutory membership in a targeted group requires certification. Plaintiffs acknowledge that the statute “contemplates certification.” PI. Mem. at 26. However, they do not agree that the statute explicitly requires it. A statute should be interpreted, where possible, such that “no clause, sentence, or word shall be superfluous, void or insignificant.” Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). This is especially so in this case, where certification “occupies so pivotal a place in the statutory scheme.” Id. Contrary to Manor Care’s argument, certification is an explicit component of the definition of each targeted group and cannot be disregarded. We give" }, { "docid": "1778000", "title": "", "text": "of its Members.”). The first step is “to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. at 450, 122 S.Ct. 941 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). The inquiry ceases “if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’” Id. (quoting Robinson v. Shell Oil Co., 519 U.S. at 340, 117 S.Ct. 843). In interpreting the plain meaning of the statute, it is the court’s duty, if possible, to give meaning to every clause and word of the statute. See TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441,151 L.Ed.2d 339 (2001) (“It is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’ ”) (quoting Duncan v. Walker, 533 U.S. at 173, 121 S.Ct. 2120); Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (describing as a “cardinal principle of statutory construction” the rule that every clause and word of a statute must be given effect if possible). Similarly, the court must avoid an interpretation of a clause or word which renders other provisions of the statute inconsistent, meaningless, or superfluous. See Duncan v. Walker, 533 U.S. at 167, 121 S.Ct. 2120 (noting that courts should not treat statutory terms as “surplusage”). “[W]hen two statutes are capable of co-existence, it is the duty of the courts ... to regard each as effective.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 155, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976); see also Hanlin v. United States, 214 F.3d 1319, 1321, reh’g denied (Fed.Cir.2000). A court must not stray from the statutory definition of a term. See Whitfield v. United States, — U.S. -, -, 125 S.Ct. 687, 691, 160 L.Ed.2d 611 (2005) (It is a “settled principle of statutory construction that, absent" }, { "docid": "11960986", "title": "", "text": "Virginia requires petitioner to render a report of its affairs and to publish the report in a newspaper whenever it issues a like call upon state banks. The amounts turned over to petitioner by its customers are called “Investments” in the statement of its condition issued by the petitioner on December 31, 1937. In 1932 petitioner was informed by counsel for the Federal Reserve Bank at Richmond, Virginia, that it was eligible for membership in the Federal Reserve System. Petitioner is not a member of the Federal Reserve System. It does not act, and does not have the power to act, as fiduciary or trustee. Section 104 of the Revenue Act of 1936, 26 U.S.C.A, Int.Rev.Acts, page 854, states: “(a) Definition. As used in this section the term ‘bank’ mgans a bank or trust company incorporated and doing, business -under the laws of the United States (including laws relating to the District of Columbia), of any State, or of any Territory, a substantial part of the business of which consists of receiving deposits and making loans and discounts, or of exercising fiduciary powers similar to those permitted to national banks under section 11 (k) of the Federal Reserve Act, as amended, and which is subject by law to supervision and examination by State or Federal authority having supervision over banking institutions. “(b) Rate of tax. Banks shall be taxable in the same manner as other corporations, except that they shall not be subject to the surtax imposed by section 14, and except that the normal tax imposed by section 13 shall be at the rate of 15 per centum instead of at the rates provided in such section.” In accordance with the provisions of this section, petitioner duly filed corporate tax returns for the years 1936 and 1937. The Commissioner of Internal Revenue (hereinafter called the Commissioner), however, concluded that petitioner was not a “bank” within the meaning of section 104 and he, accordingly, applied the surtax provisions (sections 13 and 14) of the statute to petitioner’s undistributed net income for each of the taxable years. For 1936, a deficiency" }, { "docid": "19324852", "title": "", "text": "a question of Federal tax law. Staunton Industrial L. Corp. v. Commissioner, 120 F. 2d 930 (C.A. 4, 1941). In particular, section 581 provides tbe following: SEC. 581. DEFINITION OE BANK. For purposes of sections 582 and 584, tlie term “bank” means a bank or trust company incorporated and doing business under tbe laws of tbe United States (including laws relating to tbe District of Columbia), of any State, or of any Territory, a substantial part of the business of which consists of receiving deposits and malting loans and discounts, or of exercising fiduciary powers similar to those permitted to national banks under authority of the Comptroller of the Currency, and which is subject by law to supervision and examination by State, Territorial, or Federal authority having supervision over banking institution®. Such term also means a domestic building and loan association. [Emphasis supplied.] The parties agree and the facts indicate that the only part of section 581 whose application to petitioner is doubtful is the emphasized language dealing with the type of business done by the bank. In our view petitioner looked like a bank, conducted business like a bank, and believed it was a bank. We must conclude that petitioner was a bank as we find little merit in respondent’s arguments. Although the present case is one of first impression concerning the imposition of the personal holding company tax upon a would-be bank, section 581, which sets forth the definition of a bank, does not present itself in a total vacuum. In Staunton Industrial L. Corp. v. Commissioner, supra, the court discussed the predecessor of section 581 as it was applicable in another context and concluded: A reading of these general definitions clearly reveals that the chief functions of a bank involve: (1) the receipt of deposits from the general public, repayable to the depositors on demand or at a fixed time, (2) the use of deposit funds for secured loans, and (3) the relationship of debtor and creditor between the bank and the depositor. These seem to be the bare requisites; for, certainly, an institution may still be" }, { "docid": "11960988", "title": "", "text": "was thus determined of $3,597.73 in income taxes and $86.85 in excess profit taxes; for 1937, a deficiency of $2,712.91 in income taxes and $52.92 in excess profit taxes. The Board sustained the Commissioner’s determination of a total deficiency of $6,450.41. The Board concluded in its opinion “that to be entitled to the benefits of section 104 petitioner must show that it was organized and doing business as a bank under the laws of Virginia.” (42 B.T.A. No. 153, at p. 6). It then stated that, under the applicable Virginia law, a marked distinction is made between “banks”, on the one hand, and “industrial loan associations”, on the other. The Board indicated that banks of Virginia are defined and regulated by a chapter known as the Banking Code, Chapter 164A of the Virginia Code of 1936, while industrial loan corporations are defined and regulated by Chapter 166A of the Virginia Code of 1936; that section 4149-(1) of the Banking Code provides that the term bank as used therein includes “banks of deposit and discount, savings banks, savings societies, savings institutions and trust companies * * * ”, while section 4149-(4) of the same code provides that corporations not lawfully engaged in the banking business may not use an office sign indicating thereon that such place is the office of a bank, nor may it use such letterheads as would indicate that it is doing business as a bank; that under section 4168(2) of Chapter 166A, relating to industrial loan corporations, every such association shall have as part of its title the words “industrial loan”; that, under section 4149(13) of the Banking Code, banks are prohibited from buying their own stock, while petitioner by the terms of its charter is expressly permitted to buy and sell its own stock; that, under section 4149(25), banks are limited as to the amount of interest they may pay, while petitioner under the terms of its charter may pay any rate of interest that it may fix under its by-laws; that, under section 4149(47), banks may not make loans to an individual borrower exceeding 15" }, { "docid": "11960990", "title": "", "text": "per cent of their capital and surplus, while petitioner under its charter may make loans up to 20 per cent of its capital and surplus. In concluding its comparison of Virginia “banks” and Virginia “industrial loan associations”, the Board stated in its opinion (42 B.T.A. No. 153, p. 8) : “The distinction was definitely recognized by the General Assembly of Virginia in 1934. It declared that ‘The objects of an industrial loan association and a bank are hereby declared to be similar in nature’ and authorized industrial loan associations chartered prior to January 1, 1934, to amend their charters to become ‘a bank of discount and deposit and/or trust company’ and retain the right to conduct the business of an industrial loan association. Sec. 4168 (37) (c). Petitioner never took advantage of the privilege granted by the act. The act was repealed in 1936. The petitioner was not incorporated and doing business as a bank under the laws of Virginia.” The laws of Virginia, for reasons which that State apparently thinks are compelling, draw a definite line between “banks” and “industrial loan associations”. However, we do not believe that the peculiarities in individual state laws are controlling on this court in the interpretation of section 104. The purpose of Congress in enacting section 104 is succinctly stated in the Report of the Committee on Ways and Means, H.R. No. 2475, 74th. Cong.: “Banks and trust companies are not brought within the new plan, but pay a flat rate of 15 percent on their net income and domestic corporations in receivership are treated in the same manner. This seems to be a wise public policy, since the surplus of banks must be built up for the protection of the depositors and because receiverships in the vast majority of cases cannot, of course, pay dividends.” (Italics added.) Obviously, Congress recognized that it was “wise public policy” not to discourage the building up of reserves in banking institutions. The imposition of an additional tax on the undistributed earnings of a banking institution would have been equivalent to flying in the face of the" }, { "docid": "22834372", "title": "", "text": "holds that the declaration and notarization provisions of the Rule are mandatory in those instances where the prison lacks a legal mail system. See Grady v. United States, 269 F.3d 913, 918 (8th Cir.2001) (“We have discerned that the prison mailbox rule, as codified in Rule 4(c) ..., consists] of two requirements. A prisoner must have actually deposited his legal papers with the warden by the last day for filing with the clerk. And the prisoner must at some point attest to that fact in an affidavit or notarized statement.”). Third, interpreting the requirements of the Rule’s third sentence as mere suggestions would render large portions of Fed. R.App. P. 4(c)(1) meaningless and run contrary to established caselaw. For example, under such a permissive interpretation of the Rule, a defendant could file an affidavit attesting under penalty of perjury that he filed his notice of appeal by the required date, and yet not attest that he paid first-class postage on his filings. If “may” reduces the requirements of the Rule’s last sentence to mere suggestion, a reviewing court could not refuse to accept the attestation. Thus, in this hypothetical, even though the attestation lacks the first-class-postage-attestation requirement of Rule 4(c)(1), the prisoner would simply be exercising his right to prove compliance in an alternate form. This permissive interpretation of the Rule would render its specific requirements mere surplusage, contrary to a cardinal canon of statutory construction. See Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (“It is our duty to give effect, if possible, to every clause and word of a statute.... [Because] this rule [is] a cardinal principle of statutory construction ... a statute ought ... to be so construed that ... no clause, sentence, or word shall be superfluous, void, or insignificante.]”) (internal quotations omitted) (citations omitted). Furthermore, such an interpretation would produce results contrary to established case law. See United States v. Smith, 182 F.3d 733, 735 n. 1 (10th Cir. 1999) (refusing to grant a pro se prisoner benefit of the prison mailbox rule because his filing “did not, as" }, { "docid": "21195859", "title": "", "text": "loan obligation. To determine whether the Debt- or’s monthly student loan obligation constitutes a special circumstance under section 707(b)(2)(B), the Court begins with the language of the statute itself. Duncan v. Walker, 533 U.S. 167, 172, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). “[W]here ... the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms.’ ” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917)); see also Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (“[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981))). “It is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’ ” TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (quoting Duncan, 533 U.S. at 174, 121 S.Ct. 2120). If “ ‘the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters’” or if the language of the statute is unclear, courts may resort to legislative history and “the intention of the drafters”. Ron Pair, 489 U.S. at 242-43, 109 S.Ct. 1026 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982)); see also United States v. E.I. DuPont De Nemours & Co. Inc., 432 F.3d 161, 169 (3d Cir.2005) (“Where a statute’s text" }, { "docid": "5894732", "title": "", "text": "trust department of a trust company in the banking department of this same trust company. A good deal is said, too, as to the nature and legal incidents of the relation thereby created. To us, these considerations do not seem to be vital. We think it is quite clear that Congress never intended that an institution which was a trust company, “only that and nothing more”, could by such a device, somewhat tantamount to pulling itself up by its own bootstraps, change its nature from a bona fide trust company, which is outside the statutory exemption, to a trust company “a substantial part of whose business is the receipt of deposits”, which is within the statutory exemption. The record and briefs in this case also contain some rather nice problems in bookkeeping and accounting. Yet in the light of our approach to the instant question, we think it would not be helpful to prolong this opinion by discussing these problems. The decision of this Court in Staunton Industrial Loan Corporation v. Commissioner of Internal Revenue, 4 Cir., 120 F.2d 930, decided June 10, 1941 is quite in line with the decision which we have reached in the instant case. True, in the Staunton Industrial Loan Corporation case, the statute in question was a different one; and, under that particular statute, we held that the Staunton Loan Corporation was “a bank” and, thus, came within the particular statutory exemption. Yet we are here applying the same interpretative technique that we used in the Staunton Industrial Loan Corporation case, which might be called a practical, commercial, functional approach. In both of these cases, it seemed to us preferable to use such a technique rather than to base our decision on mere analytical or purely verbal analyses of the terms used in the statutes. For the reasons indicated above, the judgment of the District Court is reversed and the cross-appeal is dismissed. Reversed." }, { "docid": "22442072", "title": "", "text": "Mr. Justice Blackmun delivered the opinion of the Court. This case presents the question whether the “additional premium” paid in 1963 by a state-chartered savings and loan association to the Federal Savings and Loan Insurance Corporation under the compulsion of § 404 (d) of the -National Housing. Act, as amended, 12 U. S. C. § 1727 (d), is deductible by the association, for income tax purposes, as an ordinary and necessary business expense under § 162 (a) of the Internal Revenue Code of 1954, 26 U. S. C. §162 (a).' The Commissioner of Internal Revenue determined a deficiency of $461,454.38 in the 1963 cash basis federal income tax of- Lincoln Savings and Loan Association. Nearly all the deficiency was attributable to the disallowance. of a deduction claimed for Lincoln’s payment of $882,636.86 made pursuant to § 404 (d). Lincoln sought redetermination in the Tax Court, Judge Raum, in a decision reviewed by the court without dissent, upheld the deficiency. 51 T. C. 82 (1968). On appeal the Ninth Circuit reversed, one judge dissenting. 422 F. 2d 90 (1970). Because of the importance of the issue for the sayings and loan industry and for the Government, we granted certiorari. 400 U. S. 901 (1970). . I The pertinent facts are not in dispute. Lincoln is a California savings and loan association organized in 1925 and is licensed under- state law. It is subject to Division 2 of the California Financial Code, § 5000 et seq., and is-also subject to the regulations of the State’s Savings and Loan Commissioner. California Administrative Code, Tit. 10, c. 2. In 1936 Lincoln applied for membership in the Federal Home Loan Bank of San Francisco (then of Los Angeles). That application was granted and Lincoln has remained a member of t'he Bank since that time. The San Francisco Bank is one of 12 regional ones established and supervised by the Federal Home Loan Bank Board under the Federal Home Loan Bank Act of 1932, 47 Stat. 725, as amended, 12 U. S. C. §§ 1421-1449. These banks provide liquidity and funds for mortgage lending by making" }, { "docid": "11960987", "title": "", "text": "loans and discounts, or of exercising fiduciary powers similar to those permitted to national banks under section 11 (k) of the Federal Reserve Act, as amended, and which is subject by law to supervision and examination by State or Federal authority having supervision over banking institutions. “(b) Rate of tax. Banks shall be taxable in the same manner as other corporations, except that they shall not be subject to the surtax imposed by section 14, and except that the normal tax imposed by section 13 shall be at the rate of 15 per centum instead of at the rates provided in such section.” In accordance with the provisions of this section, petitioner duly filed corporate tax returns for the years 1936 and 1937. The Commissioner of Internal Revenue (hereinafter called the Commissioner), however, concluded that petitioner was not a “bank” within the meaning of section 104 and he, accordingly, applied the surtax provisions (sections 13 and 14) of the statute to petitioner’s undistributed net income for each of the taxable years. For 1936, a deficiency was thus determined of $3,597.73 in income taxes and $86.85 in excess profit taxes; for 1937, a deficiency of $2,712.91 in income taxes and $52.92 in excess profit taxes. The Board sustained the Commissioner’s determination of a total deficiency of $6,450.41. The Board concluded in its opinion “that to be entitled to the benefits of section 104 petitioner must show that it was organized and doing business as a bank under the laws of Virginia.” (42 B.T.A. No. 153, at p. 6). It then stated that, under the applicable Virginia law, a marked distinction is made between “banks”, on the one hand, and “industrial loan associations”, on the other. The Board indicated that banks of Virginia are defined and regulated by a chapter known as the Banking Code, Chapter 164A of the Virginia Code of 1936, while industrial loan corporations are defined and regulated by Chapter 166A of the Virginia Code of 1936; that section 4149-(1) of the Banking Code provides that the term bank as used therein includes “banks of deposit and discount, savings" }, { "docid": "19324851", "title": "", "text": "does not fit within tbe definition of a bank contained in section 581. If respondent’s contention be true, petitioner is not entitled to tbe exemption from tbe personal bolding tax imposed by section 541 provided in section 542(c) (2). Tbe parties are in agreement that but for section 542(c) (2) petitioner would be subject to tbe personal bolding company tax for the years in issue. As far as we have been able to determine, this is a case of first impression with respect to this issue. Respondent has also determined that amounts paid as salary to Ivan H. Morgan and Elsinore Morgan were not reasonable compensation for services rendered and not deductible under section 162. Bank vs. Personal Holding Company That petitioner was a bank under tbe laws of tbe State of Indiana is not open to serious question. It was chartered under tbe State’s banking law and was subject to semiannual inspections by a State agency. However, tbe determmation of whether petitioner as a bank is exempt from tbe personal bolding company tax is a question of Federal tax law. Staunton Industrial L. Corp. v. Commissioner, 120 F. 2d 930 (C.A. 4, 1941). In particular, section 581 provides tbe following: SEC. 581. DEFINITION OE BANK. For purposes of sections 582 and 584, tlie term “bank” means a bank or trust company incorporated and doing business under tbe laws of tbe United States (including laws relating to tbe District of Columbia), of any State, or of any Territory, a substantial part of the business of which consists of receiving deposits and malting loans and discounts, or of exercising fiduciary powers similar to those permitted to national banks under authority of the Comptroller of the Currency, and which is subject by law to supervision and examination by State, Territorial, or Federal authority having supervision over banking institution®. Such term also means a domestic building and loan association. [Emphasis supplied.] The parties agree and the facts indicate that the only part of section 581 whose application to petitioner is doubtful is the emphasized language dealing with the type of business done by" }, { "docid": "3003612", "title": "", "text": "ally insured savings bank, and because a federal agency, the Bank Board, appointed the FDIC as a receiver, the Bank was not a State bank within the meaning of section 1819 (Fourth). Defendants contend that Yankee Bank was a “State bank” for section 1819 (Fourth) purposes based upon their belief that although Yankee Bank became federally chartered, it retained its previous corporate existence under Massachusetts law. In support of their contention, defendants rely upon 12 U.S.C. § 1813(a), which defines State bank as that term is used in, inter alia, § 1819 (Fourth). Section 1813(a) defines a “State bank” as: [A]ny bank, banking association, trust company, savings bank, industrial bank or similar financial institution which the Board of Directors finds to be operating substantially in the same manner as an industrial bank, or other banking institution which is engaged in the business of receiving deposits, other than trust funds as therein defined, and which is incorporated under the laws of any state, ... (except a national bank)_ 12 U.S.C. § 1813(a) (West Supp.1988) (emphasis added). In the present case, prior to converting to a federally chartered institution, the parties agree that Yankee Bank’s predecessor was originally state chartered in accordance with Massachusetts law. It is the defendants’ position, however, that when a bank is converted to a federally chartered institution, such as happened here, the bank retains its state incorporation status; and thus it is a State bank for section 1819 (Fourth) purposes. Pop-kess Supplemental Affidavit at pars. 10-11. Defendants also point out that “national banks” are excepted from the statutory definition of “State banks,” but that “insured federal savings banks,” such as Yankee Bank, are not. See, e.g., FDIC v. Huntington Towers Ltd., 443 F.Supp. 316, 318 (E.D.N.Y.1977) (“Even if FDIC had initiated this action as receiver of the Franklin National Bank, the last clause of the statute would not deny this Court subject matter jurisdiction. The exception is expressly limited to suits in which FDIC acts as receiver of a state bank and would not apply here, when FDIC would be bringing suit as receiver of a national" }, { "docid": "19324854", "title": "", "text": "given the general classification of a “bank” despite many other extensive and varied activities. * * * [120 E. 2d 933-934. Emphasis supplied.] The Stawnton court here was summarizing the dictionary and general legal definitions of a bank but found the definition of the predecessor of section 581 to encompass nearly the same elements. This Court, then the Board of Tax Appeals, followed the reasoning of Staunton in Mutual Savings & Loan Co., 44 B.T.A. 1204 (1941). Eespondent bases his argument, we believe, upon a myopic reading of the quoted portion of the Staunton decision. In his view, the deposits that petitioner received from related sources and from the State of Indiana and its political subdivisions are not to be considered in determining whether petitioner received deposits from the general public. While it makes sense for purposes of applying either the definition contained in section 581 or that of the Stawnton case to exclude from consideration the deposits provided by the bank’s own employees, its officers, and businesses with which it shared a common ownership, we do not understand respondent’s reasons for excluding the deposits received from the State and its political subdivisions. Apparently, respondent feels that the Staunton court’s use of the term “general public” justifies its argument. As a primary matter, no reference is made in section 581 or its predecessors to the “general public,” nor is there any indication in the Staimton decision that a distinction between deposits received from governmental instrumentalities and those received from other unrelated sources was in any way essential to framing a definition of a bank. While it is true that in many contests a valid distinction may be drawn between the State on one hand and the general public on the other, we do not think that it may be properly drawn here. The State and its political subdivisions are customers of banking services like any private corporation or individual. Respondent has shown us nothing significantly different about petitioner’s relationship with its governmental customers from petitioner’s treatment of any other customer. If there is any significance to the use of the" }, { "docid": "3003613", "title": "", "text": "In the present case, prior to converting to a federally chartered institution, the parties agree that Yankee Bank’s predecessor was originally state chartered in accordance with Massachusetts law. It is the defendants’ position, however, that when a bank is converted to a federally chartered institution, such as happened here, the bank retains its state incorporation status; and thus it is a State bank for section 1819 (Fourth) purposes. Pop-kess Supplemental Affidavit at pars. 10-11. Defendants also point out that “national banks” are excepted from the statutory definition of “State banks,” but that “insured federal savings banks,” such as Yankee Bank, are not. See, e.g., FDIC v. Huntington Towers Ltd., 443 F.Supp. 316, 318 (E.D.N.Y.1977) (“Even if FDIC had initiated this action as receiver of the Franklin National Bank, the last clause of the statute would not deny this Court subject matter jurisdiction. The exception is expressly limited to suits in which FDIC acts as receiver of a state bank and would not apply here, when FDIC would be bringing suit as receiver of a national bank.”) To support that position, defendants rely upon the statutory language highlighted above and two Bank Board regulations. Defendants reason that Yankee Bank was originally a state chartered bank, and that, according to 12 C.F.R. § 543.14, that corporate existence continues in the successor. Section 543.14 states, in relevant part: The corporate existence of an association converting under this part or under section 544.3 of this subchapter shall continue in its successor. 12 C.F.R. § 543.14 (1988) (emphasis added). In addition, defendants reason, “The ‘grandfathered authority’ reserved to converted mutual savings banks under 12 CFR Sect. 543.11-1 would further suggest the retention of the state incorporation.” Popkess Supplemental Affidavit at par. 11. The thrust of that regulation is that former state mutual savings banks, which undergo statutory conversion to become Federal savings banks, retain the right to exercise authority invested in them as state banks. Although appealing at first glance, closer analysis reveals several flaws in defendants’ argument. First, defendants are ignoring another definition set forth in section 1813. Section 1813 defines an “insured Federal" }, { "docid": "8116119", "title": "", "text": "recognized both judicially and administratively. By re-enacting the statutory definition of borrowed capital for purposes identical with that definition’s original purpose it must be presumed that Congress both approved and intended to adopt the judicial and administrative interpretation and construction that had been placed upon its words by those responsible for statutory interpretation and administration. Such rule is a fundamental principle of statutory interpretation and is dispositive of the instant case unless successful contention can be made that a factual situation here exists which would put taxpayers within the' rule applicable to banks. And such is the Commissioner’s principal claim in argument before this Court although the Tax Court refused to pass on the merits of such contention. Since the burden is upon taxpayers to prove that the deficiencies imposed upon them are wrong under any proper theory it is our duty to consider all contentions of the Commissioner that might sustain the contrary view. Cf. Helvering v. Gowran, 302 U.S. 238, 58 S.Ct. 154, 82 L.Ed. 224. Sec. 438(g) of the 1939 Code relates the term “bank” as contained in. Sec. 104 of that Code, 26 U.S.C.A. (I.R.C. 1939) § 104, to the excess profits tax and so defines bank thus: “ * * * a bank or trust company incorporated and doing business under the laws * * * of any State * * *, a substantial part of the business of which consists of receiving deposits and making loans and discounts * * * and which is subject by law to supervision and examination by State, Territorial or Federal authority having supervi- ‘ sion over banking institutions.” Under the law of Utah, industrial loan companies are subject to regulation through the supervision of the State Bank Commissioner and to this extent fall clearly within the definition of a bank as defined above. And it would be unrealistic not to note the marked similarity in business procedure between the intake of funds by a bank through savings deposits and that of the taxpayers through the issuance of the thrift certificates. But it would be equally unrealistic not to" }, { "docid": "19324853", "title": "", "text": "the bank. In our view petitioner looked like a bank, conducted business like a bank, and believed it was a bank. We must conclude that petitioner was a bank as we find little merit in respondent’s arguments. Although the present case is one of first impression concerning the imposition of the personal holding company tax upon a would-be bank, section 581, which sets forth the definition of a bank, does not present itself in a total vacuum. In Staunton Industrial L. Corp. v. Commissioner, supra, the court discussed the predecessor of section 581 as it was applicable in another context and concluded: A reading of these general definitions clearly reveals that the chief functions of a bank involve: (1) the receipt of deposits from the general public, repayable to the depositors on demand or at a fixed time, (2) the use of deposit funds for secured loans, and (3) the relationship of debtor and creditor between the bank and the depositor. These seem to be the bare requisites; for, certainly, an institution may still be given the general classification of a “bank” despite many other extensive and varied activities. * * * [120 E. 2d 933-934. Emphasis supplied.] The Stawnton court here was summarizing the dictionary and general legal definitions of a bank but found the definition of the predecessor of section 581 to encompass nearly the same elements. This Court, then the Board of Tax Appeals, followed the reasoning of Staunton in Mutual Savings & Loan Co., 44 B.T.A. 1204 (1941). Eespondent bases his argument, we believe, upon a myopic reading of the quoted portion of the Staunton decision. In his view, the deposits that petitioner received from related sources and from the State of Indiana and its political subdivisions are not to be considered in determining whether petitioner received deposits from the general public. While it makes sense for purposes of applying either the definition contained in section 581 or that of the Stawnton case to exclude from consideration the deposits provided by the bank’s own employees, its officers, and businesses with which it shared a common ownership," } ]

[ { "docid": "23226251", "title": "", "text": "and for unnecessary duplication of appeals, as demonstrated below, should ordinarily provide strong incentive for defendants to employ Section 3145 appeals. Because Fassler is now legally in federal custody, we must hold that his request for release from pretrial confinement is moot. See, e.g., Medina v. People of the State of California, 429 F.2d 1392 (9th Cir.1970) (appeal from writ of habeas corpus for unconstitutional bail revocation mooted by defendant’s subsequent conviction); Traber v. United States, 466 F.2d 483, 485 (5th Cir.1972) (issue of excessive bond not appropriately raised in § 2255 motion). Notwithstanding the mootness of this appeal, Fassler’s complaints concerning the basis of his pretrial detention and its effect on the subsequent trial were not unanswered. We believe the allegations of his petition demonstrate instead an ingenious device for securing redundant review of these contentions. Most of his complaints could have been or were dealt with by the district court’s review of the magistrate’s pretrial detention orders. Fassler contends, for instance, that the magistrate improperly relied on evidence of Arizona charges which may have been later dropped and erroneously evaluated their significance under the Bail Reform Act. See 18 U.S.C. § 3142(g)(3)(B). The district court’s opinion on review of the detention order specifically considered this issue. Fassler contends that he was unable to prepare for trial while he was incarcerated and that this severely hampered his defense, in view of his considerable experience as an investigator and a criminal law paralegal. The Bail Reform Act, however, states that any pretrial incarceration order shall afford a defendant the opportunity reasonably to consult with counsel and prepare his defense. 18 U.S.C. § 3142(i)(3). Fassler could have moved for additional relief to prepare his defense, or he could have challenged this facet of detention on review by the district court, but it appears that he did neither. We cannot review this contention because he did not raise it before the district court. Pierce v. United States, 525 F.2d 933 (5th Cir.1976). Additionally, Fassler contends vigorously that the threat of pretrial detention was employed to coerce a guilty plea. The district court," } ]

[ { "docid": "22749629", "title": "", "text": "taking the .22 caliber pistol from her and then shooting her with it after shooting at her with his nine-millimeter gun. He related that at one point he gathered the shells and the two guns and left in his truck; that he returned shortly thereafter, scattered the shells in the bedroom, and placed the .22 caliber pistol in Gooch’s hand. Yohey’s host of alleged errors are better understood in light of his interpretation of the state trial court’s determination to have him convicted. Yohey was originally represented by appointed counsel Robert Will-mann, who moved for extensive expert witness fees. The trial court denied that motion, citing in part Tex. Code Crim.P. art. 26.05, which limited such fees to $500. Willmann filed a mandamus petition with the Texas Court of Criminal Appeals on this matter, and another on other discovery issues. While those petitions were pending, the state moved to decertify Yohey’s pauper status, the trial judge granted the motion, and Willmann was relieved of his appointment. At some later point, the trial judge ordered Yohey incarcerated allegedly to make him a pauper again, found him a pauper, and appointed a different attorney, Gary Hutton, who also represented Yohey on direct appeal. Prior to Yohey’s trial, article 26.05 was amended and, eleven days before trial, the trial court did grant appointment of a psychiatric expert. Yohey, 801 S.W.2d at 238, 241-42. Yohey has filed this appeal pro se. He requests, in part, the adoption of previously filed legal and factual arguments in his objections to the magistrate judge’s report and in various state court pleadings. He specifically states that he will not repeat such claims. Yohey has abandoned these arguments by failing to argue them in the body of his brief. “Fed.R.App.P. 28(a)(4) requires that the appellant’s argument contain the reasons he deserves the requested relief ‘with citation to the authorities, statutes and parts of the record relied on.’ ” Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.), cert. denied, 498 U.S. 966, 111 S.Ct. 427, 112 L.Ed.2d 411 (1990) (citations omitted). “Although we liberally construe the briefs of pro" }, { "docid": "6510689", "title": "", "text": "this Court. See Maggio v. Fulford, 462 U.S. 111, 113, 103 S.Ct. 2261, 2262, 76 L.Ed.2d 794 (1983). Therefore, Livingston has failed to demonstrate deficient performance by counsel in preparing for the punishment phase of trial or prejudice. C. The district court applied the proper legal standards to Livingston’s allegations of ineffective assistance of counsel. Livingston argues that the district court applied an incorrect standard of review to the prejudice prong of his ineffective assistance claims. The district court clearly set forth and applied the proper standard of review in its memorandum and order denying relief, stating as follows: “To demonstrate prejudice with respect to a conviction, ‘the question is whether there is a reasonable probability that, absent the errors, the fact-finder would have had a reasonable doubt respecting guilt ... [or regarding the sentencing phase] would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’ ” (quoting Strickland, 466 U.S. at 695-97, 104 S.Ct. at 2069). Livingston’s argument that the district court refused to consider the combined or cumulative effect of counsel’s errors is simply wrong. In its memorandum and order denying Livingston’s petition, the district court clearly stated that “[cjounsel’s overall performance was not ‘outside the wide range of professionally competent assistance,’ and any errors, viewed separately and cumulatively, did not render the result of either the guilt or penalty phase unreliable.” Furthermore, we have previously held that we will not grant federal habeas relief where the cumulative errors complained of are not of a constitutional dimension. Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir.1992). cert. denied, 508 U.S. 960, 113 S.Ct. 2928, 124 L.Ed.2d 679 (1993) (holding that in order to merit federal habeas relief, cumulative errors must be of constitutional dimension). Livingston has not demonstrated either deficient performance by his trial counsel or any cumulative errors approaching constitutional dimension. See Yohey v. Collins, 985 F.2d 222, 229 (5th Cir.1993) (because certain errors were not of constitutional dimension and other claims were meritless, “Yohey has presented nothing to cumulate”). As we have said, the state court found that each alleged deficiency" }, { "docid": "22749643", "title": "", "text": "of trial strategy. Given the almost infinite variety of possible trial techniques and tactics available to counsel, this Circuit is careful not to second guess legitimate strategic choices. “[Gjreat deference is given to counsel, strongly presuming that counsel has exercised reasonable professional judgment.” Id. (internal citations omitted). Further, Yohey offers only speculation that his counsel was even contemplating using his own funds to hire experts for the defense. To evaluate whether counsel’s alleged errors prejudiced the defense, Yohey must demonstrate that counsel’s deficient performance renders the result of the trial “unreliable or the proceeding fundamentally unfair.” Lockhart — U.S. at -, 113 S.Ct. at 844, (citing Strickland 466 U.S. at 687, 104 S.Ct. at 2064). If Yohey fails to show prejudice, the alleged deficiencies in his counsel’s performance need not be considered. Sawyer, 848 F.2d at 588-89. As stated earlier, the evidence at trial of Yohey’s guilt was overwhelming. Any procurement of independent experts could very well have been deemed futile. Yohey offers only conclusionary allegations that the testimony of such experts would have changed the outcome of his trial. Finally, under the relevant Texas law, a psychiatrist was funded and all other non-psychiatric experts were properly denied. See Tex. Code Crim.P. art. 26.05. Yohey has failed to raise a reasonable probability of prejudice, and therefore, his allegations that his counsel’s choice not to use personal funds to hire experts rendered his counsel ineffective is without merit. Yohey also claims that he was denied effective assistance of counsel when the state court replaced Willmann with Hutton as his attorney. Yohey was satisfied with Willmann’s representation and did not want him removed. Yohey claims that Hutton provided ineffective assistance due to his inexperience with criminal cases. The right to counsel guaranteed by the Sixth Amendment does not include the right to counsel of Yohey’s choice. United States v. Magee, 741 F.2d 93, 95 (5th Cir.1984). Therefore, Yohey was not entitled to have Willmann reappointed, regardless of his desire to keep Willmann as his counsel. Also, an attorney can render effective assistance of counsel even if he has had little prior experience" }, { "docid": "22749640", "title": "", "text": "provide indigent defendants with expert assistance upon demand. An indigent defendant requesting non-psychiatric experts must demonstrate something more than a mere possibility of assistance from a requested expert. Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987). Yohey’s only evidence that the requested experts were needed was an affidavit from his first counsel, Robert Will-mann, dated July 21, 1986. In the affidavit Willmann speculated that “more than one bullet may have penetrated more than one person”, “[mjore than one person may have fired a weapon,” and that “test firing of the alleged weapons was not done by the State for powder type and distance determination concerning penetration of both clothing and the skin of the persons involved.” Further, Yohey never introduced any evidence to the state trial court suggesting that any of the findings contained in the autopsy reports were either inaccurate or in any manner subject to disagreement between experts. Therefore, he has failed to establish a reasonable probability that the requested experts would have been of assistance to the defense and that denial of such expert assistance resulted in a fundamentally unfair trial. Moore, 809 F.2d at 712. Yohey claims that the state trial court’s refusal to grant Yohey’s requests for experts and the funding for those experts rendered his counsel ineffective by forcing his attorney to choose whether or not to use his own money for a defense. This choice created a conflict of interest that denied Yohey an adequate defense. Although Yohey calls this a conflict of interest, it is not an attorney conflict of interest as the law recognizes. As noted in Cuyler v. Sullivan, 446 U.S. 335, 348 n. 14, 350, 100 S.Ct. 1708, 1718 n. 14, 1719, 64 L.Ed.2d 333 (1980) and confirmed in Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984), conflicts of interest between an attorney and his client arise when counsel actively represents an interest conflicting with the interests of his client, such as contemplated in Fed.R.Crim.P. 44(c) regarding joint representations" }, { "docid": "22749632", "title": "", "text": "issues raised for the first time on appeal. United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir.1990). The issues are as follows: 1) Amended Tex.Code Crim.P. art. 26.05, regarding funding of expert witnesses, should have been applied retroactively. In district court, Yohey argued Article 26.05 should have been held unconstitutional. 2) The state trial court denied Yohey access to exculpatory evidence by denying his pretrial motion to gain access to the crime scene. The only issues in his petition regarding complaints of denial of access to exculpatory evidence do not identify this motion. 3) Ineffective assistance of counsel because of no access to exculpatory evidence. Although he complains of ineffective assistance of counsel due to conflict of interest, as addressed below, this particular reason is not raised. See Barnard v. Collins, 958 F.2d 634, 643 n. 12 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 990, 122 L.Ed.2d 142 (1992). 4) The state suppressed evidence in the form of the EMS reports and tapes of Yohey’s calls to 911 and further suppressed evidence in control of Mrs. Yohey’s family members. Although the report and recommendation mentions a general Brady claim, the claim was raised in the context of denial of discovery motions. The magistrate judge noted that most of Yohey’s discovery requests had been granted and that Yohey did not specifically identify any evidence withheld by the prosecution as a result of the denial of discovery. In his district court petition, Yohey never identified the alleged suppression of these specific pieces of evidence as separate issues about which he was complaining. He did mention the EMS reports and 911 tapes in the context of an issue complaining of the admission of an officer’s opinion as to the time of death of the victims. However, the report and recommendation did not perceive that issue to be a veiled Brady claim. Additionally, Yohey never requested either the EMS reports and 911 tapes or evidence in the possession of Terri Yohey’s family in his state pretrial discovery requests. CLAIMS RAISED IN APPELLATE REPLY BRIEF Yohey also raises claims in his reply" }, { "docid": "22749631", "title": "", "text": "se appellants, we also require that arguments must be briefed to be preserved.” Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir.1988) (citations omitted). Also, Yohey’s incorporation of arguments from other pleadings would lengthen a brief already at the 50-page limit. See Fed.R.App.P. 28(g). Therefore, only the issues presented and argued in the brief are addressed. Additionally, Yohey’s pro se brief is convoluted at best. The issues discussed below on the merits are ones determined to have been preserved and argued on appeal. After a diligent comparison of Yohey’s brief with the district court record, several issues have been deemed as 1) new claims, that either were not presented to the district court or were presented in a totally different context in his petition, or 2) abandoned claims because they are raised for the first time in Yohey’s reply brief. NEW CLAIMS RAISED IN INITIAL APPELLATE BRIEF The issues below are claims raised on appeal, but Yohey did not argue them in district court. As a general rule, this Court does not review issues raised for the first time on appeal. United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir.1990). The issues are as follows: 1) Amended Tex.Code Crim.P. art. 26.05, regarding funding of expert witnesses, should have been applied retroactively. In district court, Yohey argued Article 26.05 should have been held unconstitutional. 2) The state trial court denied Yohey access to exculpatory evidence by denying his pretrial motion to gain access to the crime scene. The only issues in his petition regarding complaints of denial of access to exculpatory evidence do not identify this motion. 3) Ineffective assistance of counsel because of no access to exculpatory evidence. Although he complains of ineffective assistance of counsel due to conflict of interest, as addressed below, this particular reason is not raised. See Barnard v. Collins, 958 F.2d 634, 643 n. 12 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 990, 122 L.Ed.2d 142 (1992). 4) The state suppressed evidence in the form of the EMS reports and tapes of Yohey’s calls to 911 and further suppressed evidence" }, { "docid": "22749644", "title": "", "text": "the outcome of his trial. Finally, under the relevant Texas law, a psychiatrist was funded and all other non-psychiatric experts were properly denied. See Tex. Code Crim.P. art. 26.05. Yohey has failed to raise a reasonable probability of prejudice, and therefore, his allegations that his counsel’s choice not to use personal funds to hire experts rendered his counsel ineffective is without merit. Yohey also claims that he was denied effective assistance of counsel when the state court replaced Willmann with Hutton as his attorney. Yohey was satisfied with Willmann’s representation and did not want him removed. Yohey claims that Hutton provided ineffective assistance due to his inexperience with criminal cases. The right to counsel guaranteed by the Sixth Amendment does not include the right to counsel of Yohey’s choice. United States v. Magee, 741 F.2d 93, 95 (5th Cir.1984). Therefore, Yohey was not entitled to have Willmann reappointed, regardless of his desire to keep Willmann as his counsel. Also, an attorney can render effective assistance of counsel even if he has had little prior experience in criminal cases. United States v. Lewis, 786 F.2d 1278, 1281 (5th Cir.1986). “Whether the defendant has been afforded his right to counsel depends on whether the attorney is reasonably likely to render and does render reasonably effective assistance, not on whether counsel has an extensive background in criminal defense work.” Id. (internal citations omitted). Yohey does not demonstrate how his eventual counsel’s alleged inexperience rendered his assistance ineffective. Therefore, his claim of ineffective assistance of counsel is without merit. Yohey claims that the state court erred in refusing to grant his requests for pretrial habeas relief. However, such claims for federal habeas relief for pretrial issues are mooted by Yohey’s subsequent conviction. See Fassler v. U.S., 858 F.2d 1016, 1018 (5th Cir.1988), cert. denied, 490 U.S. 1099, 109 S.Ct. 2450, 104 L.Ed.2d 1004 (1989) (citing Medina v. People of the State of California, 429 F.2d 1392 (9th Cir.1970) (appeal from writ of habeas corpus for unconstitutional bail revocation mooted by defendant’s subsequent conviction). Yohey argues that the state trial court erred in denying his" }, { "docid": "22749633", "title": "", "text": "in control of Mrs. Yohey’s family members. Although the report and recommendation mentions a general Brady claim, the claim was raised in the context of denial of discovery motions. The magistrate judge noted that most of Yohey’s discovery requests had been granted and that Yohey did not specifically identify any evidence withheld by the prosecution as a result of the denial of discovery. In his district court petition, Yohey never identified the alleged suppression of these specific pieces of evidence as separate issues about which he was complaining. He did mention the EMS reports and 911 tapes in the context of an issue complaining of the admission of an officer’s opinion as to the time of death of the victims. However, the report and recommendation did not perceive that issue to be a veiled Brady claim. Additionally, Yohey never requested either the EMS reports and 911 tapes or evidence in the possession of Terri Yohey’s family in his state pretrial discovery requests. CLAIMS RAISED IN APPELLATE REPLY BRIEF Yohey also raises claims in his reply brief that are either completely new, essentially state no claim for relief, or were not raised in his initial appellate brief. This Court will not consider a claim raised for the first time in a reply brief. United States v. Prince, 868 F.2d 1379, 1386 (5th Cir.), cert. denied, 493 U.S. 932, 110 S.Ct. 321, 107 L.Ed.2d 312 (1989). The claims are as follows: 1) The recitation of facts the state used in its appellate brief was misleading. The state’s current characterization of the evidence presents no claim for relief. 2) His confession was illegally coerced. This issue was raised in his petition, but was not presented or argued in his initial appeal brief. 3) The White family by itself suppressed evidence by withholding it from the defense. This issue is new. 4) The state appellate court erroneously upheld his conviction. This claim states no ground for federal habeas relief. On appeal Yohey specifically complains about certain alleged evidentiary errors of state law. His complaints are as follows: 1) The state trial court erred in" }, { "docid": "22749626", "title": "", "text": "DeMOSS, Circuit Judge: Leslie Wayne Yohey is currently in the custody of the Texas Department of Criminal Justice. He was convicted by a jury of murder and sentenced to life imprisonment. The Texas Court of Appeals affirmed his conviction and sentence on direct appeal. Yohey v. State, 801 S.W.2d 232, 234, 247 (Tex.App.—San Antonio 1990, pet. ref’d). Yohey then filed a petition for discretionary review with the Texas Court of Criminal Appeals, which was refused. Subsequently, Yohey filed a federal petition for habeas corpus raising four issues, but attaching copies of two state petitions for writ of mandamus and an appellate brief filed after the state trial court’s pre trial denial of habeas relief. The state moved to dismiss for failure to exhaust state remedies on some of the issues, and the magistrate judge ordered Yohey to file a “brief written advisory” identifying all his grounds for relief. Yohey responded with a long document in which the district court identified 45 issues, corresponding to the 44 issues raised by Yohey on direct appeal. The magistrate judge determined that Yohey had exhausted all of his state remedies, and recommended denial of habe-as relief on the merits. The magistrate judge recommended dismissal of numerous claims on the basis that Yohey had alleged errors only of state law, but identified and discussed some federal constitutional claims as well. Over Yohey’s extensive objections, the district court adopted the magistrate judge’s report and recommendation and denied habeas relief. The district court granted certificate of probable cause (CPC). This Court has denied appointment of counsel. A summary .of the evidence at trial is helpful in understanding Yohey’s numerous allegations. The summary is drawn from the state appeals court’s decision. Yohey was convicted for murdering his estranged wife and her boyfriend. Yohey and his wife, Terri Denise Yohey, were separated and living apart. In the early morning hours of July 14, 1985, Yohey entered her apartment with a key. She was not home. Yohey had with him his loaded nine-millimeter pistol. He lay down on the bed and waited for his wife. When Terri Yohey and Craig" }, { "docid": "1307356", "title": "", "text": "conducted inadequate pretrial investigation, and failed to gain court permission for Lewis to travel out of state to prepare his defense. Fourth, he claims that Stephens mishandled a hearing on alleged governmental misconduct. Lewis’ initial complaint, that Stephens was inexperienced, has little merit. An attorney can render effective assistance of counsel even if he has had no prior experience in criminal advocacy. See United States v. Kelley, 559 F.2d 399, 401 (5th Cir.), cert. denied, 434 U.S. 1000, 98 S.Ct. 644, 54 L.Ed.2d 497 (1977). “Whether the defendant has been afforded his right to counsel depends on whether the attorney is reasonably likely to render and does render reasonably effective assistance, not on whether counsel has an extensive background in criminal defense work.” Id. (citing Herring v. Estelle, 491 F.2d 125, 126 (5th Cir.1974)). When the district judge discovered that Stephens had not been admitted in federal court, he allowed Stephens to enroll. Lewis has not pointed to any specific errors that resulted from Stephens’ alleged lack of familiarity with local court rules or evidentiary rules. Lewis has also been unable to demonstrate any prejudice resulting from Stephens’ alleged advice that he answer all questions put to him at the grand jury proceedings. The federal prosecutor who conducted the proceedings advised Lewis . of his rights to remain silent and not incriminate himself. The prosecutor advised Lewis of these rights both prior to his testimony and at a point during his testimony, and received Lewis’ assurances that he understood. The prosecutor’s warnings cured any misadvice Lewis may have received from Stephens. Cf. Bonvillain v. Blackburn, 780 F.2d 1248, 1253 (5th Cir. 1986) (sentencing judge’s instruction to defendant on potential prison term could cure defense counsel’s misrepresentation) (citing Martin v. Blackburn, 606 F.2d 92, 94 (5th Cir.1979), cert. denied, 446 U.S. 911, 100 S.Ct. 1841, 64 L.Ed.2d 265 (1980)). Moreover, Lewis has given us no reason to believe that he would have refused to testify had Stephens’ advice been accurate. Lewis’ claim that Stephens conducted inadequate pretrial investigation is without merit. Lewis has not suggested what exculpatory evidence could have been" }, { "docid": "22749635", "title": "", "text": "permitting the state to call certain rebuttal witnesses whose identities the prosecution had not made known to defense counsel prior to the trial. 2) The state trial court erred in its handling of Yohey’s written statement, provided to and used by his psychiatric expert, regarding the events of the shootings. During Yohey’s state appeal he presented these same evidentiary points of error. Citing cases from the Texas Court of Criminal Appeals, the Texas Court of Appeals decided these issues were state law claims and were not favorable to him. Yohey, 801 S.W.2d at 235-38. In reviewing Yohey’s petition for federal habeas relief, the district court also found these claims to be entirely state law claims, and as such, did not provide a basis for federal habeas relief. In his objections to the report and recommendation and on appeal, Yohey claims that the above errors rendered his trial fundamentally unfair. By so claiming, Yo-hey tries to qualify for federal habeas relief by attempting to present the issues in a federal constitutional framework. A state prisoner must exhaust his state remedies before applying for federal habeas relief. The exhaustion requirement is satisfied when federal claims have been fairly presented to the state courts for disposition. Minor v. Lucas, 697 F.2d 697, 698 (5th Cir.1983). Further, federal constitutional claims must have been presented to and considered by the state courts in a federal constitutional framework before resort can be made to federal courts. Id. “It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made.” Id. (quoting Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam). The district court properly considered these issues as solely state law issues that were not entitled to federal habeas relief. Had the district court considered these claims in their new federal guise, it would have been compelled to dismiss the entire petition for failure to exhaust state remedies. Yohey cannot now try to word his claims as federal constitutional issues and have" }, { "docid": "22749641", "title": "", "text": "experts would have been of assistance to the defense and that denial of such expert assistance resulted in a fundamentally unfair trial. Moore, 809 F.2d at 712. Yohey claims that the state trial court’s refusal to grant Yohey’s requests for experts and the funding for those experts rendered his counsel ineffective by forcing his attorney to choose whether or not to use his own money for a defense. This choice created a conflict of interest that denied Yohey an adequate defense. Although Yohey calls this a conflict of interest, it is not an attorney conflict of interest as the law recognizes. As noted in Cuyler v. Sullivan, 446 U.S. 335, 348 n. 14, 350, 100 S.Ct. 1708, 1718 n. 14, 1719, 64 L.Ed.2d 333 (1980) and confirmed in Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984), conflicts of interest between an attorney and his client arise when counsel actively represents an interest conflicting with the interests of his client, such as contemplated in Fed.R.Crim.P. 44(c) regarding joint representations of clients. Instead, Yohey’s claim is a straight ineffective assistance of counsel claim concerning whether his counsel erroneously failed to use his own money to aid in funding Yohey’s defense. As such, this claim must be evaluated under the two-pronged test set forth in Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The test requires first, a showing that counsel’s errors were so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment and second, a showing that counsel’s deficient performance so prejudiced the defense that Yohey was denied a fair and reliable trial. Lockhart v. Fretwell, — U.S. -, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Sawyer v. Butler, 848 F.2d 582, 588 (5th Cir.1988), affirmed, 497 U.S. 227, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). In order to establish the deficiency prong of the Strickland test, Yohey must demonstrate that his counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional standards. Counsel’s decision not to hire experts falls within the realm" }, { "docid": "22749646", "title": "", "text": "motion to quash the indictment on grounds that the specific gun used for each murder was not alleged. He complains that if he is retried he will be placed in jeopardy if he is not notified which gun caused which death. Also, on appeal, Yohey claims that such failure to notify caused him to be uninformed as to the charges against which he was to defend. The sufficiency of a state indictment is not a matter for federal habeas corpus relief unless it can be shown that the indictment is so defective that the convicting court had no jurisdiction. Alexander v. McCotter, 775 F.2d 595, 598 (5th Cir.1985). A claim of insufficiency of the indictment is valid for federal habeas purposes only when the indictment is so defective that under no circumstances could a valid state conviction result from facts provable thereunder. Such a determination can only be made by looking to the law of the state where the indictment was issued. Id. Further, a federal habeas court will not consider such claims when it appears that the sufficiency of the indictment was squarely presented to the highest court of the state on appeal, and that court held that the trial court had jurisdiction over the case. Id. In Yohey’s case, the Texas Court of Appeals specifically found the indictment adequate in charging that the death of each victim was caused by “a gun.” Under Texas law, such language was sufficient to notify Yohey as to the charges against him so he could prepare an adequate offense. Yohey, 801 S.W.2d at 242. Yohey’s petition for discretionary review containing this issue was refused by the Texas Court of Criminal Appeals. By doing so, that court has held that the Texas courts have jurisdiction and that the indictment is sufficient for that purpose. See Alexander, 775 F.2d at 599. Therefore, Yohey has alleged no error for which federal habeas relief can be granted. Finally, Yohey complains that the state trial court violated his rights so many times that the accumulated effects of all of the errors listed in his petition rendered his" }, { "docid": "22749638", "title": "", "text": "was eventually appointed, Yohey claims that the district court erred in waiting to appoint the psychiatrist until eleven days before trial. Yohey argues that this delay denied him the necessary time to develop unspecified critical testimony. However, Yohey has failed to specify the critical testimony or allege specific facts as to how the delay prejudiced him. Ake specifically left to the states the decision on how to implement the right of indigents to psychiatric experts and indicated that an indigent defendant did not have a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Ake 470 U.S. at 83, 105 S.Ct. at 1096. Therefore, the fact that the state trial court waited until eleven days before trial to appoint a psychiatric expert does not warrant federal habeas relief, especially in light of Yohey's vagueness as to how he was prejudiced. Yohey does claim for the first time on appeal that the delay resulted in an inaccurate evaluation of his psychological profile at the time of the shootings. However, this issue, raised for the first time on appeal, need not be reviewed. Garcia-Pillado, 898 F.2d at 39. Non-psychiatric Experts Yohey also requested the appointment and funding of forensic and ballistic experts to assist in preparing his defense that he fired in self-defense and the shot which mortally wounded his wife’s boyfriend was actually fired by his wife. He claims that such experts would have assisted his self defense theory and that their absence forced him to testify as to matters that were more appropriately within the purview of a crime scene expert. This Court has held that non-psychiatric experts, such as ballistic experts, should be provided only if the evidence is “both ‘critical’ to the conviction and subject to varying expert opinion.” Scott v. Louisiana, 934 F.2d 631, 633 (5th Cir.1991) (citations omitted). Further, the Elevénth Circuit has held that Ake and Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985) taken together hold that the government is not required to automatically" }, { "docid": "22749645", "title": "", "text": "in criminal cases. United States v. Lewis, 786 F.2d 1278, 1281 (5th Cir.1986). “Whether the defendant has been afforded his right to counsel depends on whether the attorney is reasonably likely to render and does render reasonably effective assistance, not on whether counsel has an extensive background in criminal defense work.” Id. (internal citations omitted). Yohey does not demonstrate how his eventual counsel’s alleged inexperience rendered his assistance ineffective. Therefore, his claim of ineffective assistance of counsel is without merit. Yohey claims that the state court erred in refusing to grant his requests for pretrial habeas relief. However, such claims for federal habeas relief for pretrial issues are mooted by Yohey’s subsequent conviction. See Fassler v. U.S., 858 F.2d 1016, 1018 (5th Cir.1988), cert. denied, 490 U.S. 1099, 109 S.Ct. 2450, 104 L.Ed.2d 1004 (1989) (citing Medina v. People of the State of California, 429 F.2d 1392 (9th Cir.1970) (appeal from writ of habeas corpus for unconstitutional bail revocation mooted by defendant’s subsequent conviction). Yohey argues that the state trial court erred in denying his motion to quash the indictment on grounds that the specific gun used for each murder was not alleged. He complains that if he is retried he will be placed in jeopardy if he is not notified which gun caused which death. Also, on appeal, Yohey claims that such failure to notify caused him to be uninformed as to the charges against which he was to defend. The sufficiency of a state indictment is not a matter for federal habeas corpus relief unless it can be shown that the indictment is so defective that the convicting court had no jurisdiction. Alexander v. McCotter, 775 F.2d 595, 598 (5th Cir.1985). A claim of insufficiency of the indictment is valid for federal habeas purposes only when the indictment is so defective that under no circumstances could a valid state conviction result from facts provable thereunder. Such a determination can only be made by looking to the law of the state where the indictment was issued. Id. Further, a federal habeas court will not consider such claims when it" }, { "docid": "6510690", "title": "", "text": "effect of counsel’s errors is simply wrong. In its memorandum and order denying Livingston’s petition, the district court clearly stated that “[cjounsel’s overall performance was not ‘outside the wide range of professionally competent assistance,’ and any errors, viewed separately and cumulatively, did not render the result of either the guilt or penalty phase unreliable.” Furthermore, we have previously held that we will not grant federal habeas relief where the cumulative errors complained of are not of a constitutional dimension. Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir.1992). cert. denied, 508 U.S. 960, 113 S.Ct. 2928, 124 L.Ed.2d 679 (1993) (holding that in order to merit federal habeas relief, cumulative errors must be of constitutional dimension). Livingston has not demonstrated either deficient performance by his trial counsel or any cumulative errors approaching constitutional dimension. See Yohey v. Collins, 985 F.2d 222, 229 (5th Cir.1993) (because certain errors were not of constitutional dimension and other claims were meritless, “Yohey has presented nothing to cumulate”). As we have said, the state court found that each alleged deficiency raised by Livingston did not rise to the level of a Strickland violation. After reviewing the arguments, the record, and the applicable law, the district court below concurred with the state court and granted summary judgment, finding that Livingston’s ineffective assistance of counsel claim was wholly without merit. We agree. Accordingly, we cannot say that the state court’s judgment was based upon an unreasonable application of clearly established federal law. V. Pretrial Identification Procedures Livingston argues that the showup identifications and the lineup he took part in were impermissibly suggestive and that any reliance on them would lead to a substantial likelihood of irreparable misidentification. We disagree. The question of whether identification evidence is constitutionally admissible is a mixed question of law and fact and is not entitled to a presumption of correctness. United States v. Sanchez, 988 F.2d 1384, 1389 (5th Cir.1993). However, the factual findings underlying the determination of the admissibility of identification testimony are entitled to that presumption. Lavernia v. Lynaugh, 845 F.2d 493, 500 (5th Cir.1988). “The Fifth Amendment affords accused" }, { "docid": "22749634", "title": "", "text": "brief that are either completely new, essentially state no claim for relief, or were not raised in his initial appellate brief. This Court will not consider a claim raised for the first time in a reply brief. United States v. Prince, 868 F.2d 1379, 1386 (5th Cir.), cert. denied, 493 U.S. 932, 110 S.Ct. 321, 107 L.Ed.2d 312 (1989). The claims are as follows: 1) The recitation of facts the state used in its appellate brief was misleading. The state’s current characterization of the evidence presents no claim for relief. 2) His confession was illegally coerced. This issue was raised in his petition, but was not presented or argued in his initial appeal brief. 3) The White family by itself suppressed evidence by withholding it from the defense. This issue is new. 4) The state appellate court erroneously upheld his conviction. This claim states no ground for federal habeas relief. On appeal Yohey specifically complains about certain alleged evidentiary errors of state law. His complaints are as follows: 1) The state trial court erred in permitting the state to call certain rebuttal witnesses whose identities the prosecution had not made known to defense counsel prior to the trial. 2) The state trial court erred in its handling of Yohey’s written statement, provided to and used by his psychiatric expert, regarding the events of the shootings. During Yohey’s state appeal he presented these same evidentiary points of error. Citing cases from the Texas Court of Criminal Appeals, the Texas Court of Appeals decided these issues were state law claims and were not favorable to him. Yohey, 801 S.W.2d at 235-38. In reviewing Yohey’s petition for federal habeas relief, the district court also found these claims to be entirely state law claims, and as such, did not provide a basis for federal habeas relief. In his objections to the report and recommendation and on appeal, Yohey claims that the above errors rendered his trial fundamentally unfair. By so claiming, Yo-hey tries to qualify for federal habeas relief by attempting to present the issues in a federal constitutional framework. A state prisoner must" }, { "docid": "22749642", "title": "", "text": "of clients. Instead, Yohey’s claim is a straight ineffective assistance of counsel claim concerning whether his counsel erroneously failed to use his own money to aid in funding Yohey’s defense. As such, this claim must be evaluated under the two-pronged test set forth in Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The test requires first, a showing that counsel’s errors were so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment and second, a showing that counsel’s deficient performance so prejudiced the defense that Yohey was denied a fair and reliable trial. Lockhart v. Fretwell, — U.S. -, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Sawyer v. Butler, 848 F.2d 582, 588 (5th Cir.1988), affirmed, 497 U.S. 227, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). In order to establish the deficiency prong of the Strickland test, Yohey must demonstrate that his counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional standards. Counsel’s decision not to hire experts falls within the realm of trial strategy. Given the almost infinite variety of possible trial techniques and tactics available to counsel, this Circuit is careful not to second guess legitimate strategic choices. “[Gjreat deference is given to counsel, strongly presuming that counsel has exercised reasonable professional judgment.” Id. (internal citations omitted). Further, Yohey offers only speculation that his counsel was even contemplating using his own funds to hire experts for the defense. To evaluate whether counsel’s alleged errors prejudiced the defense, Yohey must demonstrate that counsel’s deficient performance renders the result of the trial “unreliable or the proceeding fundamentally unfair.” Lockhart — U.S. at -, 113 S.Ct. at 844, (citing Strickland 466 U.S. at 687, 104 S.Ct. at 2064). If Yohey fails to show prejudice, the alleged deficiencies in his counsel’s performance need not be considered. Sawyer, 848 F.2d at 588-89. As stated earlier, the evidence at trial of Yohey’s guilt was overwhelming. Any procurement of independent experts could very well have been deemed futile. Yohey offers only conclusionary allegations that the testimony of such experts would have changed" }, { "docid": "22749647", "title": "", "text": "appears that the sufficiency of the indictment was squarely presented to the highest court of the state on appeal, and that court held that the trial court had jurisdiction over the case. Id. In Yohey’s case, the Texas Court of Appeals specifically found the indictment adequate in charging that the death of each victim was caused by “a gun.” Under Texas law, such language was sufficient to notify Yohey as to the charges against him so he could prepare an adequate offense. Yohey, 801 S.W.2d at 242. Yohey’s petition for discretionary review containing this issue was refused by the Texas Court of Criminal Appeals. By doing so, that court has held that the Texas courts have jurisdiction and that the indictment is sufficient for that purpose. See Alexander, 775 F.2d at 599. Therefore, Yohey has alleged no error for which federal habeas relief can be granted. Finally, Yohey complains that the state trial court violated his rights so many times that the accumulated effects of all of the errors listed in his petition rendered his trial so fundamentally unfair that he should be granted relief from his conviction and sentence. Yohey, in effect, asks this Court to apply the use of a cumulative error analysis in a habeas case. “[Fjederal habeas corpus relief may only be granted for cumulative errors in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension rather than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) the errors ‘so infected the entire trial that the resulting conviction violates due process.’ ” Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir.1992) (en banc) (citation omitted). However, a habeas petition may not just complain of unfavorable rulings or events in the effort to cumulate errors. Id. at 1458. As noted above, Yohey’s state law evidentiary and insufficiency of the indictment claims never rose to the federal constitutional dimension necessary to warrant cumulative error analysis. Also, no error occurred in Yohey’s other surviving claims, and they were found to be without merit. As" }, { "docid": "22749637", "title": "", "text": "them considered in this forum. Yohey’s amended federal claims are not properly before this Court, because state remedies have not been exhausted. Yohey argues that the trial court erred in denying his requests for adequate funding for him to retain ballistics, forensic, and psychiatric experts to aid in his defense. Without the help of such experts, Yohey indicates that he was unable to prepare an adequate defense to the murder charges. The Psychiatric Expert Ake v. Oklahoma, 470 U.S. 68, 82-83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985) holds that an indigent defendant who demonstrates that his sanity at the time of the offense is to be a significant factor at trial is entitled to a state appointed psychiatrist. This Court has determined that the Ake threshold requires that the defendant, at a minimum, make allegations supported by a factual showing that his insanity is in fact at issue. Volanty v. Lynaugh, 874 F.2d 243, 245 (5th Cir.), cert. denied, 493 U.S. 955, 110 S.Ct. 369, 107 L.Ed.2d 355 (1989). Although a psychiatric expert was eventually appointed, Yohey claims that the district court erred in waiting to appoint the psychiatrist until eleven days before trial. Yohey argues that this delay denied him the necessary time to develop unspecified critical testimony. However, Yohey has failed to specify the critical testimony or allege specific facts as to how the delay prejudiced him. Ake specifically left to the states the decision on how to implement the right of indigents to psychiatric experts and indicated that an indigent defendant did not have a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Ake 470 U.S. at 83, 105 S.Ct. at 1096. Therefore, the fact that the state trial court waited until eleven days before trial to appoint a psychiatric expert does not warrant federal habeas relief, especially in light of Yohey's vagueness as to how he was prejudiced. Yohey does claim for the first time on appeal that the delay resulted in an inaccurate evaluation of his psychological profile at the time of the" } ]

[ { "docid": "17142223", "title": "", "text": "protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools” (505 U.S. at 592, 112 S.Ct. at 2658). Finally, in closing the Court stressed that the objecting student was in effect compelled to attend and participate in an explicit religious exercise she had no real alternative to avoid (505 U.S. at 598, 112 S.Ct. at 2661). Unlike Lee, here there was no coercion — real or otherwise — to participate. Many students chose not to attend the stadium exercises. Others left during the invocation, then returned and exited before the benediction. Still others sat during both events, as did most stadium attendees. At the afternoon ceremonies, no prayer was involved. Finally, the mature stadium attendees were voluntarily present and free to ignore the cleric’s remarks. Most remained seated. Under these facts, in which the special concerns underlying the Supreme Court’s decision in Lee are absent, the district court correctly determined that Lee does not require the challenged practices to be struck down. Cf. Widmar v. Vincent, 454 U.S. 263, 274 n. 14, 102 S.Ct. 269, 276 n. 14, 70 L.Ed.2d 440 (1981) (“University students * * * are less impressionable than younger students and should be able to appreciate, that the University’s policy is one of neutrality of religion.”). Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, is plaintiffs’ other principal reliance. There Pennsylvania and Rhode Island each gave financial aid to church-related educational institutions, a far cry from the nondenominational invocation and benediction at the Bloomington commencement. Here the University’s practice of having an invocation and benediction at its commencements has prevailed for 155 years and is widespread throughout the nation. Rather than being a violation of the Establishment Clause, it is “simply a tolerable acknowledgment of beliefs widely held among the people of this country.” Marsh v. Chambers, 463 U.S. 783, 792, 103 S.Ct. 3330, 3336, 77 L.Ed.2d 1019 (1983). As we held in Sherman v. Community Consolidated School District 21, 980 F.2d 437 (7th Cir.1992), Illinois public schools may lead the Pledge of Allegiance, including its reference to God, without violating" } ]

[ { "docid": "22882308", "title": "", "text": "the second Lemon prong”). VI. A. Under the Supreme Court’s decisions in Lee and Santa Fe, school officials may not, consistent with the Establishment Clause, compel students to participate in a religious activity. As the Court emphasized in Lee, “our precedents do not permit school officials to assist in composing prayers as an incident to a formal exercise for their students.” 505 U.S. at 590, 112 S.Ct. 2649. The efforts of school officials “to monitor prayer will be perceived by the students as inducing a participation they might otherwise reject.” Id. In defending the constitutionality of the supper prayer, General Bunting gives two reasons why the prayer should be upheld. First, he insists that VMI’s cadets are mature adults, who will not feel coerced to participate in the supper prayer. Alternatively, he suggests that the members of the Corps (other than the rats) may avoid the prayer by falling out of the SRC formation before the Corps enters the mess hall. It is undoubtedly true that grade school children are particularly “susceptible to pressure from their peers towards conformity.” Id. at 593, 112 S.Ct. 2649. Recognizing a difference between such children and college students, certain of our sister circuits have approved the decisions of public universities to offer an invocation at graduation ceremonies. For example, in Tanford, the Seventh Circuit found that an invocation at a university commencement was not coercive. 104 F.3d at 985-86. Similarly, in Chaudhuri, the Sixth Circuit allowed a state university to include a prayer at its graduation ceremonies, concluding that “here there was no coercion- — real or otherwise — to participate in the nonsectarian prayers,” 130 F.3d at 239 (internal quotation marks omitted), because “an audience of college-educated adults could [not] be influenced unduly by prayers of the sort in question here.” Id. at 237. Although VMI’s cadets are not children, in VMI’s educational system they are uniquely susceptible to coercion. VMI’s adversative method of education emphasizes the detailed regulation of conduct and the indoctrination of a strict moral code. Entering students are exposed to the “rat line,” in which upperclassmen torment and berate" }, { "docid": "22882323", "title": "", "text": "conflicts with First Amendment principles, we turn to whether General Bunting is nevertheless entitled to qualified immunity. As a state official, General Bunting is immune from damages unless he violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. 2727. In this regard, a principle of constitutional law may be “clearly established” even though the precise factual situation has never been presented to a court. Accordingly, “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope, 536 U.S. at 741, 122 S.Ct. 2508. Although the Establishment Clause plainly forbids public schools from sponsoring an official prayer for young children, the Supreme Court has never addressed the constitutionality of state-sponsored prayer in any university setting, much less in a military college. Indeed, some of our sister circuits have approved prayer at certain university functions. See supra Part IV.B. In addition, the Court has not had the occasion to consider whether, or to what extent, the military may incorporate religious practices in its ceremonies. See Batten v. Gomez, 324 F.3d 288, 296 (4th Cir.2003) (“[W]e have been unable to find any authoritative cases considering analogous circumstances.”). In these circumstances, General Bunting could reasonably have believed that the supper prayer was constitutional, and we must affirm the district court’s decision to award him qualified immunity. VIII. For the foregoing reasons, we vacate the district court’s judgment awarding Plaintiffs declaratory and injunctive relief. We affirm the court’s decision that the Plain tiffs have alleged a violation of their rights under the Establishment Clause, but that General Bunting is nevertheless entitled to qualified immunity. AFFIRMED IN PART AND VACATED IN PART. . All VMI cadets are required to participate in one of the school’s four ROTC programs. Approximately 40% of VMI’s graduates are commissioned as officers in the military. . Historically, a VMI education was available only to men. In United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996), the Supreme Court declared this male-only admissions policy unconstitutional. .Cadets (other" }, { "docid": "22882276", "title": "", "text": "Affirmed in part and vacated in part by published opinion. Judge KING wrote the opinion, in which Senior Judge HAMILTON and Senior Judge GREENBERG joined. OPINION KING, Circuit Judge: General Josiah Bunting, III, the former Superintendent of the Virginia Military Institute (‘VMI”), appeals the district court’s award of declaratory and injunctive relief, prohibiting VMI from sponsoring a daily “supper prayer.” Former VMI cadets Neil Mellen and Paul Knick (the “Plaintiffs”) have cross-appealed, challenging the court’s award of qualified immunity to General Bunting. Because the Plaintiffs have now graduated from VMI, their claims for declaratory and injunctive relief are moot, and we vacate the district court’s judgment insofar as it awarded such relief. In assessing the Plaintiffs’ claim for damages, we agree with the district court that the supper prayer violates the Establishment Clause of the First Amendment, but that General Bunting is nevertheless entitled to qualified immunity. Mellen v. Bunting, 181 F.Supp.2d 619 (W.D.Va.2002) (the “Opinion”). I. A. VMI is a state-operated military college located in Lexington, Virginia. Since its founding in 1839, VMI has been funded by the Commonwealth of Virginia and “subject to the control of the [Virginia] General Assembly.” Va.Code Ann. § 23-92. Although it offers an education in the liberal arts, VMI also strives to prepare its cadets for military service and leadership, training them to be “ready as citizen-soldiers to defend their country in time of peril.” Appellant’s Br. at 6. To accomplish its mission, VMI utilizes an adversative method of training, modeled on an English educational philosophy and once characteristic of military instruction. The adversative method features physical rigor, mental stress, equality of treatment, little privacy, minute regulation of personal behavior, and inculcation of certain values. As the Supreme Court recently observed: “VMI constantly endeavors to instill physical and mental discipline in its cadets and impart to them a strong moral code.” United States v. Virginia, 518 U.S. 515, 520, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). In preparing its cadets for military leadership, VMI seeks to teach self-control, self-discipline, and the subordination of personal desires to the greater good. The adversative method involves" }, { "docid": "22882318", "title": "", "text": "prayer program officially establishes the religious beliefs embodied in the ... prayer.”). The supper prayer is “delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property.” Santa Fe, 530 U.S. at 307, 120 S.Ct. 2266. In this context, “an objective observer, acquainted with the [supper prayer] would perceive it as a state endorsement of prayer in public schools.” Id. at 308, 120 S.Ct. 2266 (internal quotation marks omitted). As the Court has observed, “[s]uch an endorsement is not consistent with the established principle that the gov ernment must pursue a course of complete neutrality toward religion.” Wallace, 472 U.S. at 60, 106 S.Ct. 2479. Even though VMI intended the supper prayer to be both inclusive and nondenominational, the Establishment Clause prohibits a state from promoting religion by authoring and promoting prayer for its citizens. In the words of the Court, “[t]he First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say.” Engel, 370 U.S. at 429, 82 S.Ct. 1261. In establishing its supper prayer, VMI has done precisely what the First Amendment forbids. In numerous other cases, courts have struck down similar practices under Lemon’ s “primary effect” prong. See, e.g., Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 346-47 (5th Cir.1999) (striking down policy requiring teachers to read disclaimer before teaching theory of evolution); Coles, 171 F.3d at 384-85 (same for practice of school board to open meetings with prayer); Ingebretsen, 88 F.3d at 279 (same for statute authorizing students to initiate prayer at school functions); Black Horse Pike Reg’l Bd. of Educ., 84 F.3d at 1487 (same for policy authorizing student vote on whether to incorporate prayer in graduation ceremony); Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 406 (5th Cir.1995) (same for participation of basketball coach in prayer after games). With these decisions as a jurisprudential background, we are constrained to conclude that the supper prayer" }, { "docid": "17144123", "title": "", "text": "a judgment as a matter of law.” “The function of the judge at the summary judgment stage is not to determine the truth of a matter or to weigh credibility, but to determine whether there is any genuine issue of fact....” JKC Holding Co., LLC. v. Washington Sports Ventures, Inc., 264 F.3d 469, 465 (4th Cir.2001). Thus, if there is a reasonable dispute as to any material fact, then summary judgment is improper. In this case, where there are cross-motions for summary judgment, each motion must be considered individually, and in considering a party’s motion, the facts must be viewed in a light most favorable to the non-movant. Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 817-18 (4th Cir.1995). II. Plaintiffs Neil Mellen and Paul Knick are third-year cadets at the Virginia Military Institute (“VMI” or “the Institute”). Defendant is Josiah Bunting, III, the Superintendent of VMI (“General Bunting” or “the Superintendent”). VMI is one of Virginia’s public institutions of higher learning. It is “at all times subject to the control of the [Virginia] General Assembly,” and it receives financial support as appropriated by the General Assembly. Va.Code Ann. § 23-92 (2000). VMI is distinguishable from the Commonwealth’s other state-run schools, however, in one, important aspect. As the Supreme Court noted, it is “an incomparable military college.” United States v. Virginia, 518 U.S. 515, 519, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). As a military school, VMI employs the “adversative method,” which emphasizes physical rigor, mental stress, absence of privacy, detailed regulation of behavior, and indoctrination of a strict moral code. According to General Bunting, this method is rooted in “the development of self control, self discipline, and the belief that you must subordinate your own personal desires and well-being to the good of the whole unit — qualities important to effective combat leadership.” Entering students are exposed to the “rat line,” with upperclassmen tormenting and berating new students. The experience is a punishing one, bonding “new cadets to their fellow sufferers and, when they have completed the 7-month experience, to their former tormentors.” United States v. Virginia, 518" }, { "docid": "22882310", "title": "", "text": "new students, bonding “new cadets to their fellow sufferers and, when they have completed the 7-month experience, to their former tormentors.” United States v. Virginia, 518 U.S. at 522, 116 S.Ct. 2264. At VMI, even upperclassmen must submit to mandatory and ritualized activities, as obedience and conformity remain central tenets of the school’s educational philosophy. In this atmosphere, General Bunting reinstituted the supper prayer in 1995 to build solidarity and bring the Corps together as a family. In this context, VMI’s cadets are plainly coerced into participating in a religious exercise. Because of VMI’s coercive atmosphere, the Establishment Clause precludes school officials from sponsoring an official prayer, even for mature adults. The technical “voluntariness” of the supper prayer does not save it from its constitutional infirmities. At all relevant times, VMI’s upperclass cadets could avoid the mess hall in order to shield themselves from the prayer. Nevertheless, the communal dining experience, hke other official activities, is undoubtedly experienced as obligatory. Through the hazing rituals that dominate a cadet’s first year, members of the Corps are trained to participate in VMI’s official activities. With this atmosphere as a background, VMI cannot avoid Establishment Clause problems by simply asserting that a cadet’s attendance at supper and his or her participation in the supper prayer are “voluntary.” In the words of the Supreme Court, “ ‘the government may no more use social pressure to enforce orthodoxy than it may use more direct means.’ ” Santa Fe, 530 U.S. at 312, 120 S.Ct. 2266 (quoting Lee, 505 U.S. at 594, 112 S.Ct. 2649). Put simply, VMI’s supper prayer exacts an unconstitutional toll on the consciences of religious objectors. While the First Amendment does not in any way prohibit VMI’s cadets from praying before, during, or after supper, the Establishment Clause prohibits VMI from sponsoring such a religious activity. B. We are compelled to reach the same conclusion when the supper prayer is measured against the three-part Lemon test. Under Lemon, a prayer must have a secular purpose; the primary effect of the prayer must be one that neither advances nor inhibits religion; and finally," }, { "docid": "22882324", "title": "", "text": "may incorporate religious practices in its ceremonies. See Batten v. Gomez, 324 F.3d 288, 296 (4th Cir.2003) (“[W]e have been unable to find any authoritative cases considering analogous circumstances.”). In these circumstances, General Bunting could reasonably have believed that the supper prayer was constitutional, and we must affirm the district court’s decision to award him qualified immunity. VIII. For the foregoing reasons, we vacate the district court’s judgment awarding Plaintiffs declaratory and injunctive relief. We affirm the court’s decision that the Plain tiffs have alleged a violation of their rights under the Establishment Clause, but that General Bunting is nevertheless entitled to qualified immunity. AFFIRMED IN PART AND VACATED IN PART. . All VMI cadets are required to participate in one of the school’s four ROTC programs. Approximately 40% of VMI’s graduates are commissioned as officers in the military. . Historically, a VMI education was available only to men. In United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996), the Supreme Court declared this male-only admissions policy unconstitutional. .Cadets (other than rats) do not technically have to eat in the mess hall, but the meals in the mess hall have been pre-paid, and a ca det’s only other food options are vending machines, eating with faculty, or ordering pizza. . Prior to the fall of 2001 (when this lawsuit was filed), all cadets desiring to eat supper at the first seating were required to participate in the SRC formation, march into the mess hall, and listen to the supper prayer. After the suit was filed, this policy changed somewhat, and members of the Corps (other than the rats) were permitted to eat supper before the SRC formation, or they could fall out of formation and enter the mess hall after the supper prayer was delivered. For the purposes of the qualified immunity issue, we must take the facts in the light most favorable to the Plaintiffs, assuming that they were required to listen to the prayer in order to eat in the mess hall. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150" }, { "docid": "17144166", "title": "", "text": "court ruled that no coercion was present, and held the practice constitutional. In this case, General Bunting attests that Plaintiffs are not required to remain in formation and march into the mess hall in order to be served dinner. Yet the issue is whether, despite VMI’s policy allowing cadets to fall out of formation, are cadets still effectively compelled to participate as members of the Corps. VMI is nationally renown for its use of the adver-sative method, which relies on intense peer pressure to mold high-school graduates into VMI cadets. General Bunting explains that VMI teaches cadets to “subordinate [their] own personal desires and well-being to the good of the whole unit.” That is, there is immense pressure on students, exerted by the school’s administration, to subordinate their personal objections to a religious practice and join with the Corps in marching into the mess hall to listen to the daily supper prayer. This coercion is easily as significant as the pressures put on the high-school students in Santa Fe to join their classmates and community members at the Friday-night football game. The VMI situation is also far more coercive than the graduation ceremony considered by the court in Tanford, where students could sit, stand, enter, or leave the sparsely-attended stadium exercises as they chose. While VMI cadets may be able to fall out of formation before entering the mess hall, it is clear that most students do not do so. The Institute puts a great deal of emphasis on the importance of unity and solidarity within the Corps of Cadets. For a cadet to voluntarily withdraw from the formation while his fellow cadets remain standing would be to break with that unity. Therefore, the only conclusion that a reasonable fact finder could reach is that a cadet is under a great deal of pressure to remain with the Corps and march into the mess hall. Once inside the mess hall, cadets are required to remain standing, at rest, during the prayer. They cannot come and go as they choose. Furthermore, even if a cadet was free to withdraw himself or" }, { "docid": "17144165", "title": "", "text": "— -real or otherwise — to participate. Many students chose not to attend the stadium exercises. [T]he mature stadium attendees [who did attend] were voluntarily present and free to ignore the cleric’s remarks. Most remained seated.” Tanford, 104 F.3d 982, 985-86 (7th Cir.1997). Based on these facts, the court concluded that the challenged prayer was constitutionally permissible. In Chaudhuri the Sixth Circuit also considered the age of the plaintiff, who was a tenured university professor, and again decided the case on the issue of coercion. The court observed that “Lee attached particular importance to the youth of the audience and the risk of peer pressure,” but held that “[t]he peer pressure and ‘subtle coercive pressure’ that concerned the Court in Lee were simply not present here.” 130 F.3d at 238, 239. Dr. Chaudhuri’s attendance at the graduation ceremony was encouraged, but not mandatory. The university “represented without contradiction that it does not monitor faculty attendance at the university events in question and that no faculty member has ever been penalized for non-attendance.” Id. Thus, the court ruled that no coercion was present, and held the practice constitutional. In this case, General Bunting attests that Plaintiffs are not required to remain in formation and march into the mess hall in order to be served dinner. Yet the issue is whether, despite VMI’s policy allowing cadets to fall out of formation, are cadets still effectively compelled to participate as members of the Corps. VMI is nationally renown for its use of the adver-sative method, which relies on intense peer pressure to mold high-school graduates into VMI cadets. General Bunting explains that VMI teaches cadets to “subordinate [their] own personal desires and well-being to the good of the whole unit.” That is, there is immense pressure on students, exerted by the school’s administration, to subordinate their personal objections to a religious practice and join with the Corps in marching into the mess hall to listen to the daily supper prayer. This coercion is easily as significant as the pressures put on the high-school students in Santa Fe to join their classmates and community" }, { "docid": "22882297", "title": "", "text": "made the decision about whether to pray, the school had created the mechanism by which the decision was made, and the prayer was to be delivered “over the school’s public address system, by' a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer.” Id. at 310, 120 S.Ct. 2266. For these reasons, the Court decided that the school effectively sponsored the student-led prayer. Id. The second issue considered in Santa Fe, and an issue of substantial significance here, involved whether the pregame prayer was unduly coercive. On this point, the Court noted that certain students, including cheerleaders and football players, were required to attend the football games. Id. at 311, 120 S.Ct. 2266. For other students, the “immensé social pressure” created by surrounding circumstances compelled their attendance. Id. at 311-12,120 S.Ct. 2266. The Court concluded that, “[e]ven if we regard every high school student’s decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pregame prayer has the improper effect of coercing those present in an act of religious worship.” Id. at 312, 120 S.Ct. 2266. On this basis, the Court determined that the pregame prayer had an unduly coercive effect, and that the school had accordingly violated the Establishment Clause. Id. at 313, 317,120 S.Ct. 2266. As these decisions reflect, the Court has been unwavering in its position that the Establishment Clause prohibits public schools from sponsoring an official prayer. The Court has not, however, directly addressed whether, or to what extent, a state may sponsor prayer at an institution of higher education. Because VMI is such an institution, we briefly consider how our sister circuits have dealt with the issue of state-sponsored prayer in public colleges and universities. B. In a situation closely analogous to that presented here, the Court of Appeals for the District of Columbia, in Anderson v. Laird, 466 F.2d 283 (D.C.Cir.1972), addressed a federal regulation that required all cadets and midshipmen at the military academies to attend “Protestant, Catholic or" }, { "docid": "22882307", "title": "", "text": "Felton, 190 F.3d 259, 264 (4th Cir.1999) (“ ‘[U]ntil the Supreme Court overrules Lemon and provides an alternative analytical framework, this Court must rely on Lemon in evaluating the constitutionality of legislation under the Establishment Clause.’ ” (quoting Barghout v. Bureau of Kosher Meat & Food Control, 66 F.3d 1337, 1343 n. 11 (4th Cir.1995))); accord Brown v. Gilmore, 258 F.3d 265, 275 (4th Cir.), cert. denied, 534 U.S. 996, 122 S.Ct. 465, 151 L.Ed.2d 382 (2001). In the context of school prayer, though, we must give special consideration, under the principles discussed in Lee and Santa Fe, to whether a state has coerced religious worship. In the analysis that follows, we therefore assess the supper prayer against the principles announced in Lee and Santa Fe, and we then apply the Lemon criteria, treating the endorsement test as a refinement of Lemon’s, second prong. See Adland v. Russ, 307 F.3d 471, 479 (6th Cir.2002), petition for cert. filed, 71 U.S.L.W. 3568 (U.S. Feb. 20, 2003) (No. 02-1241) (treating “the endorsement test as a refinement of the second Lemon prong”). VI. A. Under the Supreme Court’s decisions in Lee and Santa Fe, school officials may not, consistent with the Establishment Clause, compel students to participate in a religious activity. As the Court emphasized in Lee, “our precedents do not permit school officials to assist in composing prayers as an incident to a formal exercise for their students.” 505 U.S. at 590, 112 S.Ct. 2649. The efforts of school officials “to monitor prayer will be perceived by the students as inducing a participation they might otherwise reject.” Id. In defending the constitutionality of the supper prayer, General Bunting gives two reasons why the prayer should be upheld. First, he insists that VMI’s cadets are mature adults, who will not feel coerced to participate in the supper prayer. Alternatively, he suggests that the members of the Corps (other than the rats) may avoid the prayer by falling out of the SRC formation before the Corps enters the mess hall. It is undoubtedly true that grade school children are particularly “susceptible to pressure from" }, { "docid": "17144167", "title": "", "text": "members at the Friday-night football game. The VMI situation is also far more coercive than the graduation ceremony considered by the court in Tanford, where students could sit, stand, enter, or leave the sparsely-attended stadium exercises as they chose. While VMI cadets may be able to fall out of formation before entering the mess hall, it is clear that most students do not do so. The Institute puts a great deal of emphasis on the importance of unity and solidarity within the Corps of Cadets. For a cadet to voluntarily withdraw from the formation while his fellow cadets remain standing would be to break with that unity. Therefore, the only conclusion that a reasonable fact finder could reach is that a cadet is under a great deal of pressure to remain with the Corps and march into the mess hall. Once inside the mess hall, cadets are required to remain standing, at rest, during the prayer. They cannot come and go as they choose. Furthermore, even if a cadet was free to withdraw himself or herself from the supper prayer exercises, in doing so that cadet would miss the day’s announcements, which are read out loud before the prayer is recited. Additionally, the cadet would lose out on the sense of comradery that comes with remaining a part of the Corps. In Santa Fe, the Court ruled that the Establishment Clause “will not permit the [School] District ‘to exact religious conformity from a student as the price’ of joining her classmates at a varsity football game.’ ” Santa Fe, 580 U.S. at 312, 120 S.Ct. 2266 (citing Lee, 505 U.S. at 595-96, 112 S.Ct. 2649). Forcing a student to make this choice is unconstitutional because “[i]t is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice.” Lee, 505 U.S. at 596, 112 S.Ct. 2649. Similarly, the Commonwealth of Virginia cannot place VMI cadets in the position of choosing between their religious principles and full participation in" }, { "docid": "22882278", "title": "", "text": "a rigorous and punishing system of indoctrination. As an able judge in the Western District of Virginia has described it: “[t]he VMI experience is predicated on the importance of creating doubt about previous beliefs and experiences in order to create a mindset conducive to the values VMI attempts to impart.” United States v. Virginia, 766 F.Supp. 1407, 1421 (W.D.Va.1991). As part of its program of indoctrination, VMI subjects its entering cadets (known as “rats”) to a series of hazing rituals. In their first year, rats are collectively rewarded when the behavior of a single rat contributes to VMI’s objectives, and they are collectively punished when the behavior of a rat detracts from those objectives. The adversative method continues throughout a cadet’s four-year career at VMI, with submission and conformity remaining central tenets of VMI’s educational philosophy. As the. Supreme Court noted, “[t]he school’s graduates leave VMI with heightened comprehension of their capacity to deal with duress and stress, and a large sense of accomplishment for completing the hazardous course.” United States v. Virginia, 518 U.S. at 520, 116 S.Ct. 2264. Military regulations, etiquette, and drills pervade the VMI system. As the Court observed, “VMI cadets live in spartan barracks where surveillance is constant and privacy nonexistent; they wear uniforms, eat together in the mess hall, and regularly participate in drills.” Id. at 522, 116 S.Ct. 2264. In some respects, VMI is more restrictive than the regular military: its rules and regulations control how cadets spend most hours of the day. For example, cadets are authorized to leave the Post — VMI’s campus in Lexington^ — only during specific hours on specific days. B. All members of VMI’s Corps of Cadets (the student body) are required to pay a room and board fee. This fee covers all of a cadet’s meals, which are served in the Post mess hall. Although VMI serves supper to the Corps twice each evening in the mess hall, nearly all cadets attend the first seating; only those who participate in athletics or have other special circumstances can obtain authorization to attend the second seating. The first" }, { "docid": "22882314", "title": "", "text": "cadets, whose opportunities to meet those needs and exercise those rights are limited by the demands of barracks life and the highly structured nature of the VMI program.” Id. at 50,105 S.Ct. 2479. In assessing General Bunting’s asserted purposes for the supper prayer, we are concerned that he seeks to obscure the difference between educating VMI’s cadets about religion, on the one hand, and forcing them to practice it, on the other. When a state-sponsored activity has an overtly religious character, courts have consistently rejected efforts to assert a secular purpose for that activity. Indeed, we have emphasized that “an act so intrinsically religious as prayer cannot meet, or at least would have difficulty meeting, the secular purpose prong of the Lemon test.” Constangy, 947 F.2d at 1150. And we have also recognized the obvious, that recitation of a prayer “is undeniably religious and has, by its nature, both a religious purpose and effect.” Hall v. Bradshaw, 630 F.2d 1018, 1020 (4th Cir.1980). In an analogous situation, the Court of Appeals for the District of Columbia rejected the government’s contention that a federal regulation requiring chapel attendance had a secular purpose. See Anderson, 466 F.2d at 285, 290,. The federal government maintained (as VMI does here) that chapel services accommodated the free exercise rights of cadets and midshipmen, as well as sensitizing them to the religious beliefs of the soldiers and sailors they would someday lead. Rejecting the contention that these purposes justified the chapel attendance requirement, the court found that the regulation lacked a secular purpose. Id.; see also Edwards, 482 U.S. at 581, 586, 107 S.Ct. 2573 (concluding that statute violated Lemon’s secular purpose prong by prohibiting “the teaching of the theory of evolution in public schools unless accompanied by instruction in ‘creation science’ ”); Hall, 630 F.3d at 1020-21 (rejecting government’s contention that motorist’s prayer printed on state map had a secular purpose). Similarly, in Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam), the Supreme Court found no secular purpose for a statute that required the Ten Commandments be posted" }, { "docid": "22882309", "title": "", "text": "their peers towards conformity.” Id. at 593, 112 S.Ct. 2649. Recognizing a difference between such children and college students, certain of our sister circuits have approved the decisions of public universities to offer an invocation at graduation ceremonies. For example, in Tanford, the Seventh Circuit found that an invocation at a university commencement was not coercive. 104 F.3d at 985-86. Similarly, in Chaudhuri, the Sixth Circuit allowed a state university to include a prayer at its graduation ceremonies, concluding that “here there was no coercion- — real or otherwise — to participate in the nonsectarian prayers,” 130 F.3d at 239 (internal quotation marks omitted), because “an audience of college-educated adults could [not] be influenced unduly by prayers of the sort in question here.” Id. at 237. Although VMI’s cadets are not children, in VMI’s educational system they are uniquely susceptible to coercion. VMI’s adversative method of education emphasizes the detailed regulation of conduct and the indoctrination of a strict moral code. Entering students are exposed to the “rat line,” in which upperclassmen torment and berate new students, bonding “new cadets to their fellow sufferers and, when they have completed the 7-month experience, to their former tormentors.” United States v. Virginia, 518 U.S. at 522, 116 S.Ct. 2264. At VMI, even upperclassmen must submit to mandatory and ritualized activities, as obedience and conformity remain central tenets of the school’s educational philosophy. In this atmosphere, General Bunting reinstituted the supper prayer in 1995 to build solidarity and bring the Corps together as a family. In this context, VMI’s cadets are plainly coerced into participating in a religious exercise. Because of VMI’s coercive atmosphere, the Establishment Clause precludes school officials from sponsoring an official prayer, even for mature adults. The technical “voluntariness” of the supper prayer does not save it from its constitutional infirmities. At all relevant times, VMI’s upperclass cadets could avoid the mess hall in order to shield themselves from the prayer. Nevertheless, the communal dining experience, hke other official activities, is undoubtedly experienced as obligatory. Through the hazing rituals that dominate a cadet’s first year, members of the Corps are" }, { "docid": "17144161", "title": "", "text": "(1962) (holding that the daily recitation of a short prayer in public schools is unconstitutional). One question, therefore, is whether these prayers are similarly unconstitutional at a state military college. Lee involved a challenge by a 14-year-old student and her father to a public middle school’s practice of inviting a rabbi to offer a prayer during the commencement ceremony. Taking the age of the plaintiff into account, the Supreme Court limited its holding: “We do not address whether that choice [between participation and protest in the school-sponsored pray- • er] is acceptable if the affected citizens are mature adults, but we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position.” 505 U.S. at 593, 112 S.Ct. 2649. Thus, the Supreme Court was strongly influenced by the age of the audience hearing the prayer. However, this fact does not mean that the Establishment Clause was being fashioned “as a children’s rights measure.” Chaudhuri v. Tennessee, 130 F.3d 232, 239 (6th Cir.1997). The Supreme Court did not hold that children deserve greater protections under the First Amendment than other citizens. Rather, the Court simply recognized that Establishment Clause challenges must be analyzed on a case-by-ease basis. See Chaudhuri, 130 F.3d at 239. As the Court noted, “These dominant facts mark and control the confines of our decision: ... Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance. ...” 505 U.S. at 586, 112 S.Ct. 2649. Thus, the issue for the Court was whether the plaintiffs were coerced to participate. This same method of fact-based analysis was part of the Supreme Court’s ruling in Santa Fe. There, the Court struck down a public high school’s practice of electing a member of the student body to deliver a pre-game prayer over the public address system during football season. In defending this practice, the school district argued that attendance at school football games was purely voluntary. The Court compared" }, { "docid": "17144168", "title": "", "text": "herself from the supper prayer exercises, in doing so that cadet would miss the day’s announcements, which are read out loud before the prayer is recited. Additionally, the cadet would lose out on the sense of comradery that comes with remaining a part of the Corps. In Santa Fe, the Court ruled that the Establishment Clause “will not permit the [School] District ‘to exact religious conformity from a student as the price’ of joining her classmates at a varsity football game.’ ” Santa Fe, 580 U.S. at 312, 120 S.Ct. 2266 (citing Lee, 505 U.S. at 595-96, 112 S.Ct. 2649). Forcing a student to make this choice is unconstitutional because “[i]t is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice.” Lee, 505 U.S. at 596, 112 S.Ct. 2649. Similarly, the Commonwealth of Virginia cannot place VMI cadets in the position of choosing between their religious principles and full participation in the activities of the Corps. It is true that the Lee Court referred to the subtle, social pressures that exist between teenagers, and not to the type of military coercion that exists at VMI. However, the adversative method exposes students to a type of pressure that is as intense, if not more intense, than what students endure at the average American high school. “[G]overnment may no more use social pressure to enforce orthodoxy than it may use more direct means.” Lee, 505 U.S. at 594, 112 S.Ct. 2649. By the same token, government may no more use the adversative method than it may use social pressure. There is no doubt that the adversative method is a hallmark of the VMI experience, and that it is largely responsible for the Institute’s impressive, national reputation. It is permissible, and perhaps greatly beneficial, to use such intense, coercive methods to train and prepare military and civilian leaders. However, it is unconstitutional to use these same methods to exact conformity with a state-imposed religious practice. See Santa Fe, 530" }, { "docid": "22882298", "title": "", "text": "delivery of a pregame prayer has the improper effect of coercing those present in an act of religious worship.” Id. at 312, 120 S.Ct. 2266. On this basis, the Court determined that the pregame prayer had an unduly coercive effect, and that the school had accordingly violated the Establishment Clause. Id. at 313, 317,120 S.Ct. 2266. As these decisions reflect, the Court has been unwavering in its position that the Establishment Clause prohibits public schools from sponsoring an official prayer. The Court has not, however, directly addressed whether, or to what extent, a state may sponsor prayer at an institution of higher education. Because VMI is such an institution, we briefly consider how our sister circuits have dealt with the issue of state-sponsored prayer in public colleges and universities. B. In a situation closely analogous to that presented here, the Court of Appeals for the District of Columbia, in Anderson v. Laird, 466 F.2d 283 (D.C.Cir.1972), addressed a federal regulation that required all cadets and midshipmen at the military academies to attend “Protestant, Catholic or Jewish chapel services on Sundays.” Id. at 284. In Anderson, the court ruled that this chapel attendance requirement violated the Establishment Clause. Id. at 283-84. In its lead opinion, the court concluded that the “government may not require an individual to engage in religious practices or be present at religious exercises.” Id. at 291. Significantly, the court held that the regulation violated the Constitution even though: (1) attendance at the military academies was voluntary; and (2) cadets and midshipmen could be excused from the chapel attendance requirement. Id. at 293. More recently, in Tanford v. Brand, 104 F.3d 982 (7th Cir.1997), the Seventh Circuit considered whether a state university could include a religious invocation as part of its graduation ceremony. In upholding the practice, the court suggested that the invocation was not coercive, in that students were not required to attend and attendees did not feel compelled to participate in the invocation — in fact, students and their guests frequently came in and out (or remained seated) while the invocation was delivered. Id. at 985-86." }, { "docid": "17144124", "title": "", "text": "General Assembly,” and it receives financial support as appropriated by the General Assembly. Va.Code Ann. § 23-92 (2000). VMI is distinguishable from the Commonwealth’s other state-run schools, however, in one, important aspect. As the Supreme Court noted, it is “an incomparable military college.” United States v. Virginia, 518 U.S. 515, 519, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). As a military school, VMI employs the “adversative method,” which emphasizes physical rigor, mental stress, absence of privacy, detailed regulation of behavior, and indoctrination of a strict moral code. According to General Bunting, this method is rooted in “the development of self control, self discipline, and the belief that you must subordinate your own personal desires and well-being to the good of the whole unit — qualities important to effective combat leadership.” Entering students are exposed to the “rat line,” with upperclassmen tormenting and berating new students. The experience is a punishing one, bonding “new cadets to their fellow sufferers and, when they have completed the 7-month experience, to their former tormentors.” United States v. Virginia, 518 U.S. at 522, 116 S.Ct. 2264. The adversative method is an essential part of the VMI experience. In the words of Defendant, it is an experience that is “more restrictive and more austere than the regular military.” VMI, however, does more than just prepare its cadets for military careers; as an institution, it seeks to create “citizen-soldiers” who are well-prepared to take on leadership positions in civilian or military life. Approximately sixty per cent of the class of 2000 is pursuing a professional life outside of the military. In this way, VMI is distinct from the federal military academies, where all graduates receive commissions in a branch of the armed forces and are obligated to serve on active duty following graduation. Plaintiffs bring this suit to challenge the VMI practice of offering a daily “prayer of thanks” in the mess hall, before cadets are seated for dinner. The prayers, which had been part of VMI’s supper routine in the past, were stopped for a time and then reinstated by the Superintendent in 1995. Plaintiffs insist" }, { "docid": "22882319", "title": "", "text": "to control, support or influence the kinds of prayer the American people can say.” Engel, 370 U.S. at 429, 82 S.Ct. 1261. In establishing its supper prayer, VMI has done precisely what the First Amendment forbids. In numerous other cases, courts have struck down similar practices under Lemon’ s “primary effect” prong. See, e.g., Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 346-47 (5th Cir.1999) (striking down policy requiring teachers to read disclaimer before teaching theory of evolution); Coles, 171 F.3d at 384-85 (same for practice of school board to open meetings with prayer); Ingebretsen, 88 F.3d at 279 (same for statute authorizing students to initiate prayer at school functions); Black Horse Pike Reg’l Bd. of Educ., 84 F.3d at 1487 (same for policy authorizing student vote on whether to incorporate prayer in graduation ceremony); Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 406 (5th Cir.1995) (same for participation of basketball coach in prayer after games). With these decisions as a jurisprudential background, we are constrained to conclude that the supper prayer conflicts with Lemon’s second prong. Although we recognize and respect a cadet’s individual desire to say grace before supper, the Establishment Clause prohibits VMI from sponsoring this religious practice. See ACLU, Greater Pittsburgh Chapter v. County of Allegheny, 842 F.2d 655, 662 (3d Cir.1988), aff'd in part and rev’d in part by 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (“While we do not doubt that some persons find [the government’s support of religion] laudable, it ... violates the Establishment Clause of the First Amendment.”). 3. While Lemon’s second prong could dispose of the constitutional issue, VMI’s sponsorship of the supper prayer also brings the school into conflict with Lemon’s third prong, excessively entangling it with religious activity. Lemon, 403 U.S. at 615, 91 S.Ct. 2105. As the Eleventh Circuit recently stated, “[t]he ability to regulate the content of speech is a hallmark of state involvement.” Adler, 250 F.3d at 1337; see also Coles, 171 F.3d at 385 (finding excessive entanglement where “[t]he school board decided to include prayer in its public meetings," } ]

[ { "docid": "18631236", "title": "", "text": "does not raise a constitutional issue, and that maintaining unsafe working conditions is not actionable under 42 U.S.C. § 1983. Plaintiff, now represented by counsel, essentially argues that negligence is actionable under § 1983. Under Fed.R.Civ.Pro. 56(c), we must render judgment forthwith if these arguments convince us “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A. Unsafe Working Conditions The complaint alleges that working conditions in the prison kitchen violate the Eighth Amendment. Complaint ¶ 17. Defendants argue that hazardous working conditions are not actionable under § 1983. Motion for Summary Judgment at 6-7. They rely primarily on Snyder v. Blankenship, 473 F.Supp. 1208 (W.D.Va.1979), aff’d mem., 618 F.2d 104 (4th Cir. 1980). The crucial facts in Snyder are almost identical to those here. In Snyder, a prisoner slipped on a slick kitchen floor, sustaining a severe injury. Offering proof of past serious injuries resulting from slips on the floor, Snyder claimed that the prison officials deliberately required him to work in unsafe conditions, thereby depriving him of his Eighth Amendment rights. Id. 1209-10. After an extensive discussion, id., 1211-13, Judge Williams concluded that the Eighth Amendment had not been violated, and dismissed the prisoner’s complaint. He reasoned that “[mjerely undesirable conditions or practices” neither violate “evolving standards of decency,” id. 1212 (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958)), nor “involve the unnecessary and wanton infliction of pain,” id. (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)), and concluded: “Only when prison conditions become so deplorable as to fall within the range of subhuman treatment can a federal court intervene.” Id. Plaintiff argues that hazardous working conditions are actionable under § 1983 because negligence is actionable under § 1983. Plaintiff’s Response to Defendant’s Motion for Summary Judgment, § IV [hereinafter cited as Plaintiffs Response]. The actionability of negligent constitutional violations is an open question, see, e. g., Baker v. McCollan, 443 U.S. 137, 139-40, 99" } ]

[ { "docid": "6703558", "title": "", "text": "‘conditions of confinement’ claim under the Eighth Amendment, an inmate must establish that (1) the condition complained of is ‘sufficiently serious’ to implicate constitutional protection, and (2) prison officials acted with ‘deliberate indifference to inmate health or safety.’ ” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (further quotations omitted)). We hold that plaintiff has failed to establish that the standing-water problem was a sufficiently serious condition to warrant constitutional protection under the Eighth Amendment. Thus, we do not need to address the deliberate indifference requirement. In order to satisfy the first prong of the Farmer test, plaintiff must show that the standing-water problem “rose to the level of [a] ‘condition! ] posing a substantial risk of serious harm’ to inmate health or safety.” Id. at 973, 114 S.Ct. 1970 (quoting Farmer, 511 U.S. at 834, 114 S.Ct. 1970). We conclude that plaintiff has put forth insufficient evidence to make this showing. To begin with, while the standing-water problem was a potentially hazardous condition, slippery floors constitute a daily risk faced by members of the public at large. Federal courts from other circuits have therefore consistently held that slippery prison floors do not violate the Eighth Amendment. See LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir.1993) (noting that “slippery prison floors ... do not state even an arguable claim for cruel and unusual punishment”) (quotation omitted); Denz v. Clearfield County, 712 F.Supp. 65, 66 (W.D.Pa.1989) (finding no Eighth Amendment violation based on slippery floor in prison cell); Mitchell v. West Virginia, 554 F.Supp. 1215, 1216-17 (N.D.W.Va.1983) (finding no Eighth Amendment violation based on slippery floor in prison dining hall); Robinson v. Cuyler, 511 F.Supp. 161, 162, 163 (E.D.Pa.1981) (finding no Eighth Amendment violation based on slippery floor in prison kitchen); Tunstall v. Rowe, 478 F.Supp. 87, 88, 89 (N.D.Ill.1979) (finding no Eighth Amendment violation based on greasy prison stairway); Snyder v. Blankenship, 473 F.Supp. 1208, 1209, 1212-13 (W.D.Va.1979) (finding no Eighth Amendment violation based on pool of soapy water from leaking dishwasher in prison kitchen), aff'd, 618 F.2d 104 (4th Cir.1980)." }, { "docid": "23484950", "title": "", "text": "was free to raise the same arguments in a motion to reconsider or on appeal. . This result is consistent with unpublished decisions in which we have interpreted Jones and Carbe to prohibit the use of form complaints to elicit information regarding a prisoner’s exhaustion of administrative remedies. See, e.g., Chamberlain v. Chandler, 344 Fed.Appx. 911 (5th Cir.2009) (per curiam); McDonald v. Cain, 426 Fed.Appx. 332 (5th Cir.2011) (per curiam). . We also accept as true Coleman's testimony in the Spears hearing. See Eason v. Holt, 73 F.3d 600, 603 (5th Cir.1996) (explaining that a Spears hearing “ amplifies] the allegations in the prisoner's complaint” and therefore \"becomes a part of the total filing by the pro se applicant”). . See Noble v. Grimes, 350 Fed.Appx. 892, 893 (5th Cir.2009) (affirming dismissal as frivolous of prisoner § 1983 claim that defendant was deliberately indifferent by failing to correct slippery shower floor); Beasley v. Anderson, 67 Fed.Appx. 242, 242 (5th Cir.2003) (same); Mack v. Johnson, 48 Fed.Appx. 105, 105 (5th Cir.2002) (same); Marsh v. Jones, 53 F.3d 707, 712 (5th Cir.1995) (holding that Eighth Amendment violation based on wet floor caused by leaking or sweating air conditioner unit); Denz v. Clearfield Cnty., 712 F.Supp. 65, 66 (W.D.Pa.1989) (finding no Eighth Amendment violation based on a slippery floor in prison cell); Mitchell v. West Virginia, 554 F.Supp. 1215, 1216-17 (N.D.W.Va.1983) (finding no Eighth Amendment violation based on slippery floor in prison dining hall); Robinson v. Cuyler, 511 F.Supp. 161, 162, 163 (E.D.Pa.1981) (finding no Eighth Amendment violation based on slippery floor in prison kitchen); Tunstall v. Rowe, 478 F.Supp. 87, 88, 89 (N.D.Ill.1979) (finding no Eighth Amendment violation based on greasy prison stairway); Snyder v. Blankenship, 473 F.Supp. 1208, 1209, 1212-13 (W.D.Va.1979) (finding no Eighth Amendment violation based on pool of soapy water from leaking dishwasher in prison kitchen), aff'd, 618 F.2d 104 (4th Cir.1980). . We have applied this heightened standard of review where the underlying basis for dismissal was untimely service of process. See Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir.2008) (collecting cases). . In" }, { "docid": "22448272", "title": "", "text": "and under the relevant prison regulations its -use is limited to food-related infractions and cannot be imposed for more than seven days. Serving an inmate Nutraloaf as authorized under prison regulations and for such short periods does not deprive an inmate of “basic human necessities” and thus its use does not violate the Eighth Amendment. Because we determine the prison regulations regarding the use of Nutraloaf withstand constitutional scrutiny, the district court’s injunction regarding Nutraloaf should do no more than require prison officials follow those regulations. We so hold, and remand so the injunction may be reworded accordingly. C. In-Shower Restraints LeMaire and other dangerous DSU residents are placed in restraints when taken out of their cells. The purpose of this practice is to protect staff and inmates. These restraints, which include handcuffs and shackles, remain in place while inmates shower. LeMaire asserts the use of such in-shower restraints violates the Eighth Amendment. There is no evidence in the record Le-Maire. has suffered any serious injury as a result of this practice which is cognizable under the objective component of Eighth Amendment claims. Although an injunction certainly can be issued to protect inmates from unsafe conditions before serious injury has occurred, Helling v. McKinney, — U.S. -,-, 113 S.Ct. 2475, 2481, 125 L.Ed.2d 22 (1993), we do not find that shackling a dangerous inmate in a shower creates a sufficiently unsafe condition. Even if the floors of the shower are slippery and LeMaire might fall while showering, “slippery prison floors ... do not state even an arguable claim for cruel and unusual punishment.” Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir.1989). We believe not restraining a dangerous inmate like LeMaire when he is loose in the shower room creates a situation which is potentially far more dangerous than forcing him to shower while shackled. Furthermore, the record is devoid of any evidence whatsoever from which it could be even vaguely inferred that in shackling LeMaire during his showers, prison officials either were deliberately indifferent to his medical or personal needs, or acted with malice or intent to cause harm." }, { "docid": "17405830", "title": "", "text": "deprivations” are required to make out a conditions-of-eonfinement claim. Hudson v. McMillian, 503 U.S. 1, 8-9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Thus, in a conditions-of-confinement case, a “sufficiently serious” deprivation is shown when “a prison official’s act or omission ... results] in the denial of ‘the minimal civilized measure of life’s necessities.’ ” Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). The subjective component follows from the principle that “ ‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.’ ” Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (quoting Wilson, 501 U.S. at 297, 111 S.Ct. 2321). The “deliberate indifference” subjective standard applies to claims of inhumane conditions of confinement. Wilson, 501 U.S. at 303-04, 111 S.Ct. 2321. A finding of deliberate indifference requires a showing that the defendant “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Under this standard, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970. As to the objective component, Mr. Matthews’ allegations do not state a claim for deprivation “of the minimal measure of life’s necessities,” as required to state a claim upon which relief can be granted pursuant to the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 36, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (allegations were not sufficient to show exposure “to a risk that is so grave that it violates contemporary standards of decency”); Estate of DiMarco, 473 F.3d at 1337-38 (conditions of confinement in most restrictive housing pod “met the basic necessities of life”); Trujillo, 465 F.3d at 1225 n. 17 (allegations of limited access to education, employment, religious programming, housing assignment, recreation time and equipment, the telephone, and the commissary did not state an Eighth Amendment claim) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir.1998));" }, { "docid": "6703559", "title": "", "text": "a daily risk faced by members of the public at large. Federal courts from other circuits have therefore consistently held that slippery prison floors do not violate the Eighth Amendment. See LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir.1993) (noting that “slippery prison floors ... do not state even an arguable claim for cruel and unusual punishment”) (quotation omitted); Denz v. Clearfield County, 712 F.Supp. 65, 66 (W.D.Pa.1989) (finding no Eighth Amendment violation based on slippery floor in prison cell); Mitchell v. West Virginia, 554 F.Supp. 1215, 1216-17 (N.D.W.Va.1983) (finding no Eighth Amendment violation based on slippery floor in prison dining hall); Robinson v. Cuyler, 511 F.Supp. 161, 162, 163 (E.D.Pa.1981) (finding no Eighth Amendment violation based on slippery floor in prison kitchen); Tunstall v. Rowe, 478 F.Supp. 87, 88, 89 (N.D.Ill.1979) (finding no Eighth Amendment violation based on greasy prison stairway); Snyder v. Blankenship, 473 F.Supp. 1208, 1209, 1212-13 (W.D.Va.1979) (finding no Eighth Amendment violation based on pool of soapy water from leaking dishwasher in prison kitchen), aff'd, 618 F.2d 104 (4th Cir.1980). Simply put, “[a] ‘slip and fall,’ without more, does not amount to cruel and unusual punishment.... Remedy for this type of injury, if any, must be sought in state court under traditional tort law principles.” Mitchell, 554 F.Supp. at 1217; see also Snyder, 473 F.Supp. at 1212-13 (noting that a prisoner’s “slip and fall incident ... could just have easily occurred in any other state-owned facility,” and that the “incident makes out nothing more than a common law tort”). But see Frost v. Agnos, 152 F.3d 1124, 1127-29 (9th Cir.1998) (stating that a disabled prisoner on crutches who had fallen many times at least stated a § 1983 claim under the Eighth Amendment for the multiple risks presented at his prison, including slippery shower floors with no safety features). Thus, the question is whether this case presents sufficiently special or unique circumstances that require us to depart from the general rule barring Eighth Amendment liability in prison slip and fall cases. Plaintiff claims that his situation is distinguishable from the typical prison slip and fall" }, { "docid": "19719538", "title": "", "text": "Amendment. See Tunstall, 478 F.Supp. at 89 (the existence of a greasy staircase which caused a prisoner to slip and fall did not violate the Eighth Amendment); Snyder, 473 F.Supp. at 1212 (failure to repair leaking dishwasher which resulted in a pool of soapy water in which prisoner slipped did not violate Eighth Amendment); see also Robinson v. Cuyler, 511 F.Supp. 161, 163 (E.D.Pa.1981) (“[a] slippery kitchen floor does not inflict ‘cruel and unusual punishments’ ”). In Arnold v. South Carolina Dep’t of Corrections, 843 F.Supp. 110 (D.S.C.1994), the court sought to determine whether injury caused by a deliberately indifferent failure to maintain a steam pot violated a clearly established Eighth Amendment right. The relevant conduct took place in February, 1992, and therefore the Arnold court’s survey of the law is relevant here. See Baker v. Racansky, 887 F.2d 183, 187 (9th Cir.1989). The Arnold court found no other cases in which malfunctioning kitchen equipment that caused injury supported a civil rights violation. 843 F.Supp. at 114. Accordingly, the court held that whether the Eighth Amendment applies to malfunctioning kitchen equipment is questionable, and therefore certainly not “clearly established” for purposes of qualified immunity. Id. Appellee relies on Gill v. Mooney, 824 F.2d 192 (2d Cir.1987). In Gill, an inmate alleged that a prison official had ordered him to continue working on a defective ladder although the official knew the ladder was unsafe. The Second Circuit held that the inmate stated a claim for an Eighth Amendment violation. Id. at 195. In Gill, the unsafe nature of the ladder posed an immediate threat to the inmate because the prison official ordered the inmate to use the ladder. The order to remain on the ladder in Gill exacerbated the inherent dangerousness of the defective ladder, rendering the ladder a serious safety hazard, akin to those found in Hoptomt. In our case, appellee has not pled facts rising to the level of a serious safety hazard. Based on our analysis of relevant law, we conclude that in light of clearly established principles at the time of the incident a reasonable prison official" }, { "docid": "23484940", "title": "", "text": "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inférence.” Id. In dismissing Coleman’s claims against Sweetin, Oliver, Cowan, and Brown, the lower court essentially held that prisoner slip-and-fall claims almost never serve as the predicate for constitutional violations as a matter of law. We agree with this conclusion. Coleman fails to state a claim as to the first prong of the Farmer test. A slippery shower floor, although a potential hazard, is “a daily risk faced by members of the public at large.” Reynolds v. Powell, 370 F.3d 1028, 1031 (10th Cir.2004); see also LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir.1993); Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir.1989) (“slippery prison floors ... do not state even an arguable claim for cruel and unusual punishment”). Other federal courts, including district courts in this circuit, have frequently rejected constitutional claims arising from slip and fall accidents. The usual reasoning is that the existence of slippery conditions in any populous environment represents at most ordinary negligence rather than a condition so threatening as to implicate constitutional standards. One exception serves to reinforce this general rule of rejection. In Frost v. Agnos, 152 F.3d 1124, 1128-29 (9th Cir.1998), the court reversed summary judgment for a prisoner who asserted an Eighth Amendment claim after he slipped and fell in the shower while on crutches. The Frost decision, however, rests on defendants’ failure to accommodate his disabled condition, not simply on the slippery floor. Earlier, in LeMaire, the Ninth Circuit refused to hold that “shackling a dangerous inmate in a shower creates a sufficiently unsafe condition.” Thus, that Coleman asserts foreknowledge of the slippery conditions by the wardens and maintenance supervisors is not relevant to the first prong of Farmer. IV. The Eighth Amendment requires that inmates receive “adequate medical care.” See Rogers v. Boatright, 709 F.3d 403, 409 (5th Cir.2013) (internal quotation marks omitted). Prison officials may violate this mandate when they exhibit “deliberate indifference to a prisoner’s serious medical needs.” Easter" }, { "docid": "23596276", "title": "", "text": "v. DeTella, 256 F.3d 679, 683 (7th Cir.2001). . See also Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir.2009). . See also Edwards v. Snyder, 478 F.3d 827, 830-31 (7th Cir.2007). . See also Greeno v. Daley, 414 F.3d 645, 653 (7th Cir.2005). . See also Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir.1996). . Although Wexford is a private corporation, we analyze claims against the company as we would a claim of municipal liability. Minix, 597 F.3d at 834; Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 927 n. 1 (7th Cir.2004). . R.14 at 6. . See Coleman v. Sweetin, 745 F.3d 756, 764 (5th Cir.2014) (per curiam) (agreeing with district court that, as a matter of law, “prisoner slip-and-fall claims almost never serve as the predicate for constitutional violations,” thus upholding sua sponte dismissal of deliberate-indifference claim brought by inmate who slipped and fell in shower); Reynolds v. Powell, 370 F.3d 1028, 1031 (10th Cir.2004) (upholding dismissal at summary judgment of Eighth Amendment claim brought by inmate who attributed slip-and-fall to standing water in shower, since \"slippery floors constitute a daily risk faced by members of the public at large”); LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir.1993) (reasoning that, even if shackled inmate might fall on wet floor while showering, allegations of \"slippery prison floors” do not state “even an arguable claim for cruel and unusual punishment”) (quoting Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir.1989)). . See also Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866 (7th Cir.2013) (per curiam); Jackson v. Kotter, 541 F.3d 688, 698 (7th Cir.2008); Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir.1997); Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir.1995)." }, { "docid": "22779499", "title": "", "text": "rather than under the Eighth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Because pretrial detainees’ rights under the Fourteenth Amendment are comparable to prisoners’ rights under the Eighth Amendment, however, we apply the same standards. See Redman v. County of San Diego, 942 F.2d 1435, 1441 (9th Cir.1991). To determine whether the conditions of Frost’s confinement constituted cruel and unusual punishment, we must assess whether Frost was deprived of the “minimal civilized measure of life’s necessities.” Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). If so, a prison official may be held liable if he acted with “deliberate indifference” to a substantial risk of serious harm. Mere negligence is not sufficient to establish liability. Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Rather, the official’s conduct must have been “wanton,” which turns not upon its effect on the prisoner, but rather, upon the constraints facing the official. Wilson, 501 U.S. at 302-03, 111 S.Ct. 2321. I. The Conditions of Frost’s Confinement A. Failure to Accommodate Frost’s Disability Frost argues that by refusing to provide an accessible environment, jail officials failed to take reasonable measures to guarantee his safety, thereby violating his constitutional rights. For example, Frost claims that because he was forced to live in cells that did not have accessible shower facilities, he slipped and injured himself. Moreover, although he submitted several grievance forms to advise jail officials of the risk he faced, and although a prison doctor stated that he should be placed in the handicapped unit, prison officials declined to accommodate him. Frost concludes that Defendants knowingly subjected him to the risk of falling, thereby exhibiting a deliberate indifference to his well-being. Defendants insist that slippery shower floors cannot establish a constitutional claim. Their characterization unfairly trivializes Frost’s claim. Because Frost was on crutches, he fell and injured himself several times. Prison guards were aware of this. Slippery floors without protective measures could create a sufficient danger to warrant relief. See LeMaire v. Maass, 12" }, { "docid": "23484939", "title": "", "text": "of action.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. at 1955). Conditions of prison confinement are subject to Eighth Amendment scrutiny. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994). The “[u]nnecessary and wanton infliction[] of pain” provides the lodestar for Eighth Amendment analysis. See Hope v. Pelzer, 536 U.S. 730, 737, 122 S.Ct. 2508, 2514, 153 L.Ed.2d 666 (2002). An Eighth Amendment claim has two elements. Farmer, 511 U.S. at 834, 114 S.Ct. at 1977. “First, the deprivation alleged must be, objectively, sufficiently serious” such that the prison official’s act or omission constitutes a “denial of the minimal civilized measures of life’s necessities.” Id. (internal quotation marks omitted). Second, the “prison official must have a sufficiently culpable state of mind,” i.e., he must act with “deliberative indifference” to inmate health and safety. Id. A prison official acts with the requisite mental state when he “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inférence.” Id. In dismissing Coleman’s claims against Sweetin, Oliver, Cowan, and Brown, the lower court essentially held that prisoner slip-and-fall claims almost never serve as the predicate for constitutional violations as a matter of law. We agree with this conclusion. Coleman fails to state a claim as to the first prong of the Farmer test. A slippery shower floor, although a potential hazard, is “a daily risk faced by members of the public at large.” Reynolds v. Powell, 370 F.3d 1028, 1031 (10th Cir.2004); see also LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir.1993); Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir.1989) (“slippery prison floors ... do not state even an arguable claim for cruel and unusual punishment”). Other federal courts, including district courts in this circuit, have frequently rejected constitutional claims arising from slip and fall accidents. The usual reasoning is that the existence of" }, { "docid": "3874016", "title": "", "text": "pleaded so long as sufficient factual averments show that the claimant may be entitled to some relief.”). The allegations in Hearns’s pro se amend ed complaint were sufficient to raise an inference that the prison officials acted with deliberate indifference, or knew that Hearns faced a substantial risk of serious harm and “disregarded] that risk-by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847, 114 S.Ct. 1970. Accordingly, the district court erred in dismissing Hearns’s “failure-to-protect” claim. B. Conditions of Confinement in Disciplinary Segregation As with his “failure-to-protect” claims, Hearns must make two showings to challenge his conditions of confinement. First, he must make an objective showing that the deprivation was “sufficiently serious” to form the basis for an Eighth Amendment violation. Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Second, Hearns must make a subjective showing that the prison official acted “with a sufficiently culpable state of mind.” Id. In light of the Eighth Amendment’s prohibition against cruel and unusual punishment, prison officials have a duty to ensure that inmates receive adequate food, clothing, shelter, and medical care. See Farmer, 511 U.S. at 832, 114 S.Ct. 1970; Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir.1996); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982). Moreover, “[ejxercise has been determined to be one of the basic human necessities protected by the Eighth Amendment,” LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir.1993), and -a long-term deprivation of outdoor exercise for inmates is unconstitutional, see id. at 1458 (“[T]his circuit has determined the long-term denial of outside exercise is unconstitutional.”) (emphasis in original). See also Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.1979) (“There is substantial agreement among the cases in this area that some form of regular outdoor exercise is extremely important to the psychological and physical well being of the inmates.”); Toussaint v. Yockey, 722 F.2d 1490, 1493 (9th Cir.1984) (holding that the district court did not err in concluding that the denial of outdoor exercise to inmates assigned to administrative segregation for over one year raised" }, { "docid": "22779500", "title": "", "text": "S.Ct. 2321. I. The Conditions of Frost’s Confinement A. Failure to Accommodate Frost’s Disability Frost argues that by refusing to provide an accessible environment, jail officials failed to take reasonable measures to guarantee his safety, thereby violating his constitutional rights. For example, Frost claims that because he was forced to live in cells that did not have accessible shower facilities, he slipped and injured himself. Moreover, although he submitted several grievance forms to advise jail officials of the risk he faced, and although a prison doctor stated that he should be placed in the handicapped unit, prison officials declined to accommodate him. Frost concludes that Defendants knowingly subjected him to the risk of falling, thereby exhibiting a deliberate indifference to his well-being. Defendants insist that slippery shower floors cannot establish a constitutional claim. Their characterization unfairly trivializes Frost’s claim. Because Frost was on crutches, he fell and injured himself several times. Prison guards were aware of this. Slippery floors without protective measures could create a sufficient danger to warrant relief. See LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir.1993) (holding that inmates are entitled to be protected from unsafe prison conditions). Frost’s repeated injuries and the unsafe conditions that follow from his use of crutches distinguish this case from LeMaire, upon which Defendants rely, and Jackson v. State of Arizona, 885 F.2d 639, 641 (9th Cir.1989) (holding that slippery floors, by themselves do not constitute cruel and unusual punishment). Whether prison officials must provide handicapped-accessible accommodations for a pretrial detainee who wears a leg east and relies on crutches presents an issue of first impression in our court. In resolving the issue, we recognize that the definition of cruel and unusual punishment is subject to “the evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). As a society, we have grown increasingly sensitive to the need to accommodate individuals with disabilities. Notably, the Supreme Court recently held that Title II of the Americans with Disabilities Act covers inmates in state prisons. See" }, { "docid": "10283959", "title": "", "text": "official’s act or omission is sufficiently serious to result in the denial of the minimal civilized measure of life’s necessities. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994); Wilson, 501 U.S. at 305, 111 S.Ct. at 2327-28; Nami, 82 F.3d at 67. Second, an inmate must demonstrate that prison officials acted or failed to act with deliberate indifference to a substantial risk of harm to inmate health or safety. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994); Wilson, 501 U.S. at 305, 111 S.Ct. at 2327-28; Nami, 82 F.3d at 67. To establish the subjective component of an eighth-amendment claim — deliberate indifference — an inmate must show that a prison official “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847, 114 S.Ct. at 1984. “The long duration of a cruel prison condition may make it easier to establish knowledge and hence some form of intent.” Wilson, 501 U.S. at 300, 111 S.Ct. at 2325 (citation omitted). Deliberate indifference can be inferred from evidence that letters were sent by inmates to prison administrators informing them that conditions significantly increased the possibility of serious harm. See Nami, 82 F.3d at 67-68. Because a party’s state of mind is inherently a question of fact, state of mind is typically not a proper issue for resolution on summary judgment. See Young, 960 F.2d at 360 n. 21. Several of the general conditions alleged to prevail at CCCF during plaintiffs’ periods of incarceration were severe enough to constitute possible deprivations of the minimal civilized measure of life’s necessities. For example, overcrowding was extreme: many plaintiffs allege not merely double- or even triple-celling, but the routine housing of five or six inmates in cells designed for only one or two persons. Plaintiffs say that they slept on the floor, not occasionally or in emergencies, but continually, for periods as long as eleven months. See, e.g., Bowman, Conn, Evans, Green, Jackson," }, { "docid": "7909990", "title": "", "text": "prison officials hable for violating an inmate’s right to humane conditions of confinement, two requirements must be met. First, the deprivation alleged must be objectively “sufficiently serious,” Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991), depriving the inmate of “ ‘the minimal civilized measure of life’s necessities,’ ” id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)). Second, the official must have a “sufficiently culpable state of mind,” which in this context means the official must exhibit “deliberate indifference” to a substantial risk of serious harm to an inmate. Farmer, 511 U.S. at 834, 114 S.Ct. at 1977; Wilson, 501 U.S. at 297, 111 S.Ct. at 2323. Thus, the deliberate indifference standard in a prison-conditions case is a “subjective” and not an “objective” requirement. That is, a prison official is liable only if the “official knows of and disregards an excessive risk to inmate health and safety.” Farmer, 511 U.S. at 837, 114 S.Ct. at 1979. It is not enough to establish that the official should have known of the risk of harm. Id. With regard to plaintiffs’ sexual assault claims, we have expressly acknowledged that an “inmate has a constitutional right to be secure in her bodily integrity and free from attack by prison guards.” Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir.1993). Clearly plaintiffs’ deprivations resulting from the sexual assaults are sufficiently serious to constitute a violation under the Eighth Amendment. Nevertheless, Ms. Barney and Ms. Christensen have not shown that Sheriff Limb and the Commissioners were deliberately indifferent in failing to protect them from Mr. Pulsipher’s assaults. Plaintiffs maintain defendants knew of the substantial risk posed by permitting Mr. Pul-sipher to be the sole guard on duty and consciously disregarded that risk. To support their claims of defendants’ knowledge, plaintiffs rely primarily on defendants’ official policy requiring two jailers to be present when female prisoners were removed from their cell. This policy, in plaintiffs’ view, clearly reflects defendants’ understanding that a substantial risk of sexual misconduct to female inmates existed when" }, { "docid": "18574982", "title": "", "text": "Reeder, 12 F.3d 754, 756 (8th Cir.1993). In contrast, the state of mind inquiry presents a question of fact, and is “subject to demonstration in the usual ways, including inference from circumstantial evidence.” Farmer, — U.S. at —, 114 S.Ct. at 1981. For most Eighth Amendment claims, the plaintiff satisfies the culpability requirement by proving that the defendants’ actions (or omissions) constitute “deliberate indifference.” This “baseline” standard, Jordan, 986 F.2d at 1527, applies in cases alleging inadequate protection from injury from other inmates or inhumane conditions of confinement that deprive an inmate of a basic necessity of life, such as shelter, food, health or exercise. See Farmer, — U.S. at —, 114 S.Ct. at 1977; Jordan, 986 F.2d at 1528. As the Supreme Court recently clarified, the test for determining “deliberate indifference” is essentially equivalent to the standard for establishing subjective recklessness in criminal cases. Farmer, — U.S. at —, 114 S.Ct. at 1980. Thus, the plaintiff must show that: the [prison] official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Id. at —, 114 S.Ct. at 1979. In other words, the defendant must “consciously disregard a substantial risk of serious harm.” Id. at —, 114 S.Ct. at 1980 (internal quotation omitted). Such a standard presupposes that the defendant has not acted reasonably in the face of a known risk. Thus, a prison official can avoid liability if he “responded reasonably to the risk, even if the harm ultimately was not averted.” Id. at — - —, 114 S.Ct. at 1982-83. “Whether one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.\" Id. at —, 114 S.Ct. at 1983. In sum, deliberate indifference occurs where the prison official “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate" }, { "docid": "22779501", "title": "", "text": "F.3d 1444, 1457 (9th Cir.1993) (holding that inmates are entitled to be protected from unsafe prison conditions). Frost’s repeated injuries and the unsafe conditions that follow from his use of crutches distinguish this case from LeMaire, upon which Defendants rely, and Jackson v. State of Arizona, 885 F.2d 639, 641 (9th Cir.1989) (holding that slippery floors, by themselves do not constitute cruel and unusual punishment). Whether prison officials must provide handicapped-accessible accommodations for a pretrial detainee who wears a leg east and relies on crutches presents an issue of first impression in our court. In resolving the issue, we recognize that the definition of cruel and unusual punishment is subject to “the evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). As a society, we have grown increasingly sensitive to the need to accommodate individuals with disabilities. Notably, the Supreme Court recently held that Title II of the Americans with Disabilities Act covers inmates in state prisons. See Pennsylvania Dep’t of Corrections v. Yeskey, — U.S. -, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998). Other courts have found that the failure to provide handicapped accessible bathroom facilities may give rise to a constitutional claim. See, e.g., LaFaut v. Smith, 834 F.2d 389, 392-94 (4th Cir.1987) (finding that'the-failure of prison officials to ensure that mobility-impaired inmates had accessible toilet facilities resulted in the violation of the prisoner’s constitutional rights); Casey v. Lewis, 834 F.Supp. 1569, 1582 (D.Ariz.1993) (holding that failure to accommodate disability by providing adequate shower facilities violated constitutional rights). Defendants concede that they did not accommodate Frost’s need for accessible shower facilities. They argue, however, that Frost’s close custody classification precluded them from placing him in the handicapped housing unit. We are sympathetic to the security constraints Defendants faced in housing Frost, a former detention officer charged with the attempted murder of a police officer. Nonetheless, although Frost’s classification was related to a legitimate pe-nological interest, a close custody classification does not reheve jail officials of the duty of providing for his" }, { "docid": "22448273", "title": "", "text": "under the objective component of Eighth Amendment claims. Although an injunction certainly can be issued to protect inmates from unsafe conditions before serious injury has occurred, Helling v. McKinney, — U.S. -,-, 113 S.Ct. 2475, 2481, 125 L.Ed.2d 22 (1993), we do not find that shackling a dangerous inmate in a shower creates a sufficiently unsafe condition. Even if the floors of the shower are slippery and LeMaire might fall while showering, “slippery prison floors ... do not state even an arguable claim for cruel and unusual punishment.” Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir.1989). We believe not restraining a dangerous inmate like LeMaire when he is loose in the shower room creates a situation which is potentially far more dangerous than forcing him to shower while shackled. Furthermore, the record is devoid of any evidence whatsoever from which it could be even vaguely inferred that in shackling LeMaire during his showers, prison officials either were deliberately indifferent to his medical or personal needs, or acted with malice or intent to cause harm. The purpose of the restraints is not to injure LeMaire or make it difficult for him to shower, but again, to protect staff. We see this practice as a security imperative. The shower area in the DSU was not secure and did not have a door when this action was filed. Although we have been informed that a door has now been installed, that does not end our consideration of this matter. Common sense and the record tell us it is foolish and inattentive to the safety of staff not to restrain LeMaire when he is outside his .cell. Thus, even a door securing the shower area would not abate this threat if LeMaire refuses to cooperate once free inside. LeMaire’s documented assaults on January 5, 1987, February 1, 1989, August 14, 1989, and February 19, 1990, see Part I, demonstrate beyond all doubt the wisdom of restraining this inmate. Thus, LeMaire’s' Eighth Amendment claim as to this practice is manifestly without merit. In view of the damage LeMaire has inflicted on staff and inmates" }, { "docid": "19719537", "title": "", "text": "a single defective device, without any other conditions contributing to the threat to an inmates’ safety, created an objectively insufficiently humane condition violative of the Eighth Amendment. Hoptomt involved a condition — bad lighting — which exacerbated the inherent dangerousness of already-existing hazards, such that those hazards “seriously threatened the safety and security of inmates.” Id. Appellee has not pled any such exacerbating conditions. In particular, appellee has not pled any conditions which rendered him unable to “provide for [his] own safety” in the sense that they precluded him from avoiding the faulty oven door or rendered him unable to perceive its defective condition. See id. On appeal, appellants rely on Tunstall v. Rowe, 478 F.Supp. 87 (N.D.Ill.1979), and Snyder v. Blankenship, 473 F.Supp. 1208 (W.D.Va.1979), aff'd. 618 F.2d 104 (4th Cir.1980), cert. denied, 446 U.S. 942, 100 S.Ct. 2167, 64 L.Ed.2d 797 (1980). These pre-Rhodes eases do not distinguish clearly between the subjective and objective prongs of the Eighth Amendment analysis. In each, however, minor safety hazards were found not to violate the Eighth Amendment. See Tunstall, 478 F.Supp. at 89 (the existence of a greasy staircase which caused a prisoner to slip and fall did not violate the Eighth Amendment); Snyder, 473 F.Supp. at 1212 (failure to repair leaking dishwasher which resulted in a pool of soapy water in which prisoner slipped did not violate Eighth Amendment); see also Robinson v. Cuyler, 511 F.Supp. 161, 163 (E.D.Pa.1981) (“[a] slippery kitchen floor does not inflict ‘cruel and unusual punishments’ ”). In Arnold v. South Carolina Dep’t of Corrections, 843 F.Supp. 110 (D.S.C.1994), the court sought to determine whether injury caused by a deliberately indifferent failure to maintain a steam pot violated a clearly established Eighth Amendment right. The relevant conduct took place in February, 1992, and therefore the Arnold court’s survey of the law is relevant here. See Baker v. Racansky, 887 F.2d 183, 187 (9th Cir.1989). The Arnold court found no other cases in which malfunctioning kitchen equipment that caused injury supported a civil rights violation. 843 F.Supp. at 114. Accordingly, the court held that whether the Eighth" }, { "docid": "23484951", "title": "", "text": "F.3d 707, 712 (5th Cir.1995) (holding that Eighth Amendment violation based on wet floor caused by leaking or sweating air conditioner unit); Denz v. Clearfield Cnty., 712 F.Supp. 65, 66 (W.D.Pa.1989) (finding no Eighth Amendment violation based on a slippery floor in prison cell); Mitchell v. West Virginia, 554 F.Supp. 1215, 1216-17 (N.D.W.Va.1983) (finding no Eighth Amendment violation based on slippery floor in prison dining hall); Robinson v. Cuyler, 511 F.Supp. 161, 162, 163 (E.D.Pa.1981) (finding no Eighth Amendment violation based on slippery floor in prison kitchen); Tunstall v. Rowe, 478 F.Supp. 87, 88, 89 (N.D.Ill.1979) (finding no Eighth Amendment violation based on greasy prison stairway); Snyder v. Blankenship, 473 F.Supp. 1208, 1209, 1212-13 (W.D.Va.1979) (finding no Eighth Amendment violation based on pool of soapy water from leaking dishwasher in prison kitchen), aff'd, 618 F.2d 104 (4th Cir.1980). . We have applied this heightened standard of review where the underlying basis for dismissal was untimely service of process. See Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir.2008) (collecting cases). . In addition, we generally affirm dismissals with prejudice only upon a finding of at least one of three aggravating factors: \"(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct.” Price v. McGlathery, 792 F.2d 472, 474 (5th Cir.1986)." }, { "docid": "22686177", "title": "", "text": "Joseph Ledbetter, dated Sept. 14, 2001). Even if Mr. Ledbetter had alleged these facts in his complaint, they are insufficient to establish that he was subjected to cruel and unusual punishment in violation of the Constitution. Under the Due Process Clause of the Fourteenth Amendment, the City was required to provide to a pretrial detainee such as Mr. Ledbetter “humane conditions of confinement by ensuring ... the basic necessities of adequate food, clothing, shelter, and medical care and by taking reasonable measures to guarantee [his] safety.” Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir.1998); see also Craig v. Eberly, 164 F.3d 490, 495 (10th Cir.1998) (“Although the Due Process Clause governs a pretrial detainee’s claim of unconstitutional conditions of confinement, the Eighth Amendment standard provides the benchmark for such claims.”) (citation omitted). In order to establish city officials’ liability for violating his right to humane conditions of confinement, Mr. Ledbetter was required to establish that: (1) the officials “kn[ew] of and disregarded] an excessive risk to [his] health and safety,” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) and (2) the alleged deprivation was “sufficiently serious.” See Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271, (1991). As to the second component, jail conditions may be “restrictive and even harsh” without violating constitutional rights. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). “[O]nly those deprivations denying the minimal civilized measure of life’s necessities ... are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson, 501 U.S. at 298, 111 S.Ct. 2321. (internal quotation marks omitted). Here, Mr. Ledbetter’s contention that he was placed in his bare feet in a cell without a toilet for five hours does not allege a sufficiently serious deprivation to constitute a constitutional violation. See Barney, 143 F.3d at 1311 (noting that “[a]n important factor in determining whether the conditions of confinement meet constitutional standards is the length of the incarceration”). E. Claim against Judge Roach The dismissal of Mr. Ledbet-ter’s claim against Judge Roach on" } ]

[ { "docid": "22189534", "title": "", "text": "cross-head, viz., cooperating projections and grooves formed with laterally inclined coacting surfaces. “It is believed that no invention was involved in modifying the Joyner device, as suggested by Markel and Walek.” It is claimed by counsel for appellant that the involved claims have been wrongly rejected on a composite reference; that there is nothing in the references to indicate that they could be modified to form the involved combination structure; that the “tongue and groove arrangements” involved in claims 29 and 39 are new and are not shown in any of the references; and that, as new and useful results are obtained by the combination of old and new elements in appellant’s device, the Commissioner of Patents erred in rejecting the involved claims. The Solicitor of the Patent Office contends that, so far as the issues here are concerned, appellant has done nothing more than to unite various elements, shown in the references, into a single structure which possesses no new functions, each of the elements operating in the same way as in the old art; and that such a combination does not involve invention. Three tribunals of the Patent Office having concurred in holding that the claims in issue do not involve patentable invention, the decision of the Commissioner of Patents should he affirmed, unless it is manifestly wrong. This rule is particularly applicable to eases involving highly technical questions, and especially where the court is unaided by the testimony of those expert in the art. In re Beswick, 16 App. D. C. 345. The issues have been fairly stated and carefully considered by the tribunals of the Patent Office, and they require no further discussion in this opinion. We have given much time and effort in a study of the drawings and specifications in the application and in the references cited, and we are unable to say that the Commissioner has erred in holding that the claims in issue do not involve invention. The decision is affirmed. Affirmed." } ]

[ { "docid": "18662080", "title": "", "text": "flour, but it is referred to in Byrne and each of the foregoing references contemplate that the flour would be aged prior to its use by the baker. The aging of flour is not only old in the art but it is also conventional as hereinbefore noted. In Dietz, Wellinghoff, and Donk et al. the wheat germ is separately ground and treated to remove the rancid element in the germ and the non-rancid germ is thereafter incorporated in aged flour for the bakers’ mixture. Donk et al. also shows that rancidity may be eliminated by storing, the germ contents in carbon dioxide, and Byrne discloses that it is old to impregnate flour with carbon dioxide for the purpose not only of rendering freshly ground flour fit for immediate use by the baker but also of preserving the flour by the prevention of its decomposition. The cited references considered collectively clearly suggest doing the thing that appellant has done in this case and the Primary Examiner and the Board of Appeals correctly decided that the methods and article defined in the appealed claims were not patentable over the art of record for the reason that what appellant has done would be obvious to anyone skilled in the art. See In re Stover, 32 C. C. P. A. (Patents) 823, 146 F. (2d) 299, 64 USPQ 186. Appellant contends that the references taken singly or together do not teach his characteristic four steps which are new in the art and which are necessary to obtain the desired result. There is no merit in the point here in the absence of any proof in the record that the order of performing the steps produces any new and unexpected results. See In re Gibson, 17 C. C. P. A. (Patents) 1090, 39 F. (2d) 975, 5 USPQ 230; In re Lang et al., 25 C. C. P. A. (Patents) 1322, 97 F. (2d) 626, 38 USPQ 187; In re McKee, 23 C. C. P. A. (Patents) 1187, 83 F. (2d) 819, 29 USPQ 493. In view of our conclusion it is unnecessary to discuss" }, { "docid": "18682732", "title": "", "text": "established the relative proportions of those substances which would be compatible, the results of such experimentation are patentable, and in case of doubt, the question of patentability should be resolved in favor of appellants under the doctrine of Corona Cord Tire Company v. Dovan Chemical Corporation, 276 U. S. 358 and In re Sibley, 24 C. C. P. A. (Patents) 1143, 88 F. (2d) 960, 33 USPQ 212. What appellants really seek is a patent on a result produced in mixtures of melamine resins and various film-forming materials, the claimed ratios and proportions of which, as correctly held by the tribunals of the Patent Office, are within the ranges generally disclosed or suggested by the prior art and there was nothing in the record which established that the claimed ratios and proportions were critical. Under the law it was incumbent upon appellants to establish by a proper showing that they have invented a coating composition possessing characteristics or qualities of utility that are new and materially different from the compositions disclosed in the cited references. See In re Swenson et al., 30 C. C. P. A. (Patents) 809, 132 F. (2d) 1020, 56 USPQ 372, In re Cooper et al., 30 C. C. P. A. (Patents) 946, 134 F. (2d) 630, 57 USPQ 117, and authorities therein cited. Appellants rely iqoon an affidavit and the tables submitted by them in these appeals as illustrating and proving that the claimed “ratio of formaldehyde to melamine, as well as the alcohol reacted with the melamine resin, is critical.” That evidence, however, is clearly insufficient, as disclosed upon examination, to sustain their burden of proof on the issue of criticality. Appellants assert that the decisions by the tribunals of the Patent Office were erroneously based on a mistake of fact not only in the case at bar but also in two of the other appeals presented herewith. In support of that position, appellants contend— In the rejection of the claims in Aiopeal Nos. 5175, 5170, and 5177, which are all based primarily on the Widmer et al. patent, on the ground that there" }, { "docid": "22356670", "title": "", "text": "C. P A. 1102, 1105, 111 F. 2d 190, 192 (1940) Farnsworth v. Brown, 29 C. C. P. A. 740, 749, 124 F. 2d 208, 214 (1941) In re Ubbelhode, 29 C. C. P. A. 1042, 1046, 128 F. 2d 458, 456 (1942) In re Cohen, 30 C. C. P. A. 876, 880, 183 F. 2d 924, 926 (1943) In re Ruzicka, 32 C. C. P. A. 1165, 1169, 150 F. 2d 550, 553 (1945) In re Allbright, 33 C. C. P. A. 760, 764, 152 F. 2d 984, 986 (1946) Cases Referring to Agreement Within the Agency Beidler v. Caps, 17 C. C. P. A. 703, 705, 36 F. 2d 122, 123 (1929) Stern v. Schroeder, 17 C. C. P. A. 690, 696-697, 36 F. 2d 518, 521-522 (1929) Janette v. Folds, 17 C. C. P. A. 879, 881, 38 F. 2d 361, 362 (1930) In re Moulton, 17 C. C. P. A. 891, 892, 38 F. 2d 359, 360 (1930) In re Banner, 17 C. C. P. A. 1086, 1090, 39 F. 2d 690, 692 (1930) In re Walter, 17 C. C. P. A. 982, 983, 39 F. 2d 724 (1930) Pengilly v. Copeland, 17 C. C. P. A. 1143, 1145, 40 F. 2d 995, 996 (1930) Thompson v. Pettis, 18 C. C. P. A. 755, 757, 44 F. 2d 420, 421 (1930) In re Kochendorfer, 18 C. C. P. A. 761, 763, 44 F. 2d 418, 419 (1930) In re Dickerman, 18 C. C. P. A. 766, 768, 44 F. 2d 876, 877 (1930) Bennett v. Fitzgerald, 18 C. C. P. A. 1201, 1202, 48 F. 2d 917, 918 (1931) In re Doherty, 18 C. C. P. A. 1278, 1280, 48 F. 2d 952, 953 (1931) In re Murray, 19 C. C. P. A. 766, 767-768, 53 F. 2d 540, 541 (1931) In re Breer, 19 C. C. P. A. 929, 931, 55 F. 2d 485, 486 (1932) Robbins v. Steinbart, 19 C. C. P. A. 1069, 1072, 57 F. 2d 378, 379 (1932) Henry v. Harris, 19 C. C. P. A. 1092, 1096-1097, 56 F. 2d" }, { "docid": "18103842", "title": "", "text": "references suggests that the claims are in fact patentable. The law is well settled that it is proper for the tribunals of the Patent Office to recite all grounds of rejection of an application for a patent so that the basis of each rejection may be scrutinized in the event of an appeal to this court. It is not necessary for the court, however, to recite and. pass upon each ground of rejection. In re Liebergeld and Singer, 20 C. C. P. A. (Patents) 1031, 1033, 64 F. (2d) 541, 17 U. S. Pat. Q. 344. In connection with the allowance of patent claims, either for a machine or a method, it is also proper for the tribunals of the Patent Office to consider a number of references and to i~ely upon more than one of them as the basis for the rejection of such claims. In re Stover, 32 C. C. P. A. (Patents) 823, 146 F. (2d) 299, 64 USPQ, 186; In re William J. Armbruster, 18 C. C. P. A. (Patents) 1039, 47 F. (2d) 815, 8 U.S. Pat. Q 446. Claim 22 calls for “a strong steady stream devoid of appreciable eddies.” The examiner pointed out that this step involves a feature well known in the art as disclosed by the cited references, and in affirming the action of the .examiner the board further stated that a current of air devoid of appreciable eddies could be provided as a matter of choice by any person skilled in the art by controlling the velocity of the air stream as disclosed and suggested by the patents to Archer, Crooker, Williams et al. and Shorter et al. As hereinbefore described, the two last named patents definitely state that the current of air is such that there are no eddies except those which áre of very small dimensions. The patent to Williams' et al. explicitly states, moreover, that the characteristics of the air stream may be regulated by the adjustment of the speed of a fan or the aperture of a valve. The second step recited in claim 22 calls" }, { "docid": "20335883", "title": "", "text": "elements may be patentable is well established. But not all new combinations are patentable. If a new combination of old elements is to be patentable, the elements must cooperate in such a manner as to produce a new, unobvious, and unexpected result. Such a combination, to be patentable, must amount to an invention. In the absence of invention, utility and novelty are not sufficient to support allowance of claims for a patent. In re Kaufmann, 39 C. C. P. A. (Patents) 769, 193 F. (2d) 331, 92 USPQ 141. In view of the above, it appears to us that the essential question in tMs case is whether or not appellant exercised inventive faculty sufficient to support the allowance of claims for a patent in producing the claimed spray device by use of old and known elements. With the exception of claim 5, which also recites shut-off and relief valves, the feature upon which applicant seeks to predicate patentability of the appealed claims is the substitution of a known type of hydraulic drive system for the mechanical agitator drive system of the primary reference patents to Bateman et al. and Brandt et al. The examiner and the board considered this change to be a mere substitution of mechanical equivalents producing no new or unexpected result, and hence they were of the opinion that such substitutions did not involve invention. A test of equivalency is whether a substituted element operates in substantially the same way to produce substantially the same result as the element replaced. In re Husted, 17 C. C. P. A. (Patents) 1002, 39 F. (2d) 713, 5 U. S. Pat. Q. 397. Applying this test, we are in agreement with this holding of the Patent Office tribunals. We think it significant that, as noted by the board, appellant discloses a modification of the claimed spray device wherein he shows a mechanical belt and pulley agitator drive system similar to that shown by Bateman et al. Where an applicant’s own specification indicates an equivalency between two different things, one of which is shown in the prior art, the applicant is" }, { "docid": "17649662", "title": "", "text": "been produced. As to whether Holtz, in June, 1919, had fully performed the mental part of the invention by conceiving a device responding to the counts whieh, when constructed, would operate in the manner provided by the counts, we are constrained to be guided in our conclusion by the concurring findings of the tribunals below. The question involves highly technical matters of electrical engineering, and we can not say that the tribunals below were clearly in error in their findings. In re Wietzel et al., 39 F.(2d) 669, 17 C. C. P. A. 1079, 1082; Gleason v. Doseh et al., 39 F.(2d) 687, 17 C. C. P. A. 1012. Furthermore, it seems to us that, i£ Holtz had a full conception of a motor responding to the counts at bar in June, 1919, he would not have embarked upon the invention and construction of the star-plale rotor upon which he was awarded, priority in the companion interference ease. Conception is defined in Robinson on Patents, § 376, as follows: “The conception of the invention consists in the complete performance of the mental part of the inventive act. * * * All that remains to be accomplished, in order to perfect the art or instrument, belongs to the department of construction, not creation. It is thus the formation, in the mind of the inventor, of a definite and permanent idea of the complete and operative invention, as it is hereafter to be applied in practice.” In Mergenthaler v. Scudder, 11 App. D. C. 264, 279, with reference to conception, the court said: “If drawings be exhibited and relied on, as evidence of the conception of the invention, they must show a complete conception, free from ambiguity or doubt, and such as would enable the inventor or others skilled in the art to reduce the conception to practice without any further- exercise of inventive skill.” While no authorities based upon a state of facts identical with those at bar have been found, we think Glidden v. Noble, 5 App. D. C. 480; Mergenthaler v. Scudder, supra; Appert v. Schmertz, 13 App. D." }, { "docid": "6562947", "title": "", "text": "some unexpected- or unobvious property or utility not possessed by the homologous compounds disclosed in the prior art — Priebs. That issue is disposed of in the case of In re Henry B. Hass and Alfred G. Susie (Patent Appeal No. 4819), 31 C. C. P. A. (Patents) 895,141 F. (2d) 122 (a companion appeal, decided concurrently herewith), contrary to the views urged upon us here by counsel for appellants. [1] For the reasons stated in our decision in that case, we are of opinion that the tribunals of the Patent Office were right in holding that, in order to be patentable, novel members of a homologous series of compounds must possess some unobvious or unexpected beneficial properties not possessed by homologous compounds disclosed'in the prior art. Whether novel chemical compounds are patentable over prior art isomers and homologues, is a question to be determined in each case. It is not contended here by counsel for appellants that the homologous compounds disclosed in the Priebs reference would not suggest to one skilled in the art the compound of claim 4, or that that compound has any unexpected or unobvious properties not known to be possessed by the prior art compounds. On the contrary, it is the contention of counsel for appellants that novelty alone is sufficient to lend patentability to the claims on appeal. ■ It is elementary that novelty alone is not sufficient to impart patentability to a claim. Invention must be present. See Thompson v. Boisselier, 114 U. S. 1; In re Lincoln et al., 29 C. C. P. A. (Patents) 942, 126 F. (2d) 477, 53 USPQ 40; Cuno Engineering Corp. v. Automatic Devices Corp., 314 U. S. 84, 51 USPQ 272. Counsel for appellants challenges the correctness of our decision in the case of In re Rudolph Wietzel and Wilhelm Michael, 17 C. C. P. A. (Patents) 1079, 39 F. (2d) 669, which was cited and relied upon by each of the tribunals of the' Patent Office in the instant case. In the Wietzel and Michael case, supra, certain process claims, relating to the manufacture of" }, { "docid": "5841847", "title": "", "text": "we find no error in this conclusion on the part of the board. Appellant in this court also raised, but did not press, the subject of public use being a bar to Winsor under certain circumstances. It is doubtful if any of appellant’s reasons of appeal cover this question, but it is clear to us that, in this character of proceeding, we cannot concern ourselves with this phase of patent procedure. Stern et al. v. Schroeder et al., 17 C. C. P. A. (Patents) 690, 696, 36 F. (2d) 518; Derby v. Whitworth, 20 C. C. P. A. (Patents) 791, 796, 62 F. (2d) 368; Hendrickson et al. v. Ronning et al., 22 C. C. P. A. (Patents) 1040, 76 F. (2d) 137. Proceedings with which we are not here concerned take care of that question, and we do not regard it as being one upon which we need express any opinion here. Since we agree with the tribunals below that Winsor was the first to conceive and first to reduce to practice the invention involved in the counts at bar, and since, under the circumstances of this case, Winsor is not estopped from claiming the invention, we conclude that priority of invention in the subject matter of the issue was properly awarded to Winsor, the junior party, and the decision of the Board of Appeals is affirmed." }, { "docid": "20111784", "title": "", "text": "Clearly the only difference between the claims of the patent and those here involved resides in the use by appellants of hydrogen cyanide instead of sodium cyanide. Two patents may not issue for different forms or species of the same invention when they are noninventively different. In re Gollmar, 21 C. C. P. A. (Patents) 749, 67 F. (2d) 907, 20 U. S. Pat. Q. 14; In re Joseph Slepian, supra; In re Sherman, 28 C. C. P. A. (Patents) 1329, 121 F. (2d) 527, 50 USPQ 142; In re Korpi et al., 34 C. C. P. A. (Patents) 956, 160 F. (2d) 564, 73 USPQ 229; In re Jennings, 35 C. C. P. A. (Patents) 1163, 167 F. (2d) 1014, 77 USPQ 613; In re Henri-Georges Doll, 36 C. C. P. A. (Patents) 1140, 175 F. (2d) 583, 82 USPQ 188. While in those cited cases the inventorship was the same, we are of the opinion, as suggested in the brief of the solicitor, that under the rule set forth in the case of In re Leon Mann and Morris Koppelman, 18 C. C. P. A. (Patents) 1020,47 F. (2d) 370, 8 U. S. Pat. Q. 381, the same principle applies to patents of different inventors granted to a common assignee. The Board of Appeals in its decision referred specifically to the Webb et al. patent. Both the Hager and the Webb et al. patents were relied upon by the tribunals of the Patent Office as showing the equivalency of HOST and NaCN. Counsel for appellants contends that the statement of equivalency, as set out in the decisions of the tribunals of the Patent Office, cannot defeat appellants’ claims unless the equivalency is obvious or taught by the prior art. There is no question but that the matter of equivalency is a question of fact and its proof can be established in any form. Graver Tank & Mfg. Co., Inc. et al. v. Linde Air Products Co., 339 U. S. 605. It has been held many times by this court that where the disclosure of an application gives two" }, { "docid": "20335884", "title": "", "text": "mechanical agitator drive system of the primary reference patents to Bateman et al. and Brandt et al. The examiner and the board considered this change to be a mere substitution of mechanical equivalents producing no new or unexpected result, and hence they were of the opinion that such substitutions did not involve invention. A test of equivalency is whether a substituted element operates in substantially the same way to produce substantially the same result as the element replaced. In re Husted, 17 C. C. P. A. (Patents) 1002, 39 F. (2d) 713, 5 U. S. Pat. Q. 397. Applying this test, we are in agreement with this holding of the Patent Office tribunals. We think it significant that, as noted by the board, appellant discloses a modification of the claimed spray device wherein he shows a mechanical belt and pulley agitator drive system similar to that shown by Bateman et al. Where an applicant’s own specification indicates an equivalency between two different things, one of which is shown in the prior art, the applicant is not in a favorable position to argue that invention lies in the use of the other, although there might, perhaps, be some exceptions in unusual circumstances. See In re Yount, 36 C. C. P. A. (Patents) 775, 171 F. (2d) 317, 80 USPQ 141, and In re Withington, 26 C. C. P. A. (Patents) 1290, 104 F. (2d) 192, 41 USPQ 742. We concur with the board’s inference from this alternative disclosure that the appellant himself must have regarded the mechanical and hydraulic drives as equivalents. As to claim 5, which also recites the shut-off and relief valves, we agree with the board and the examiner that no invention was involved in the use of these features as is clearly taught in the Knapp reference, which discloses a very similar device. In the light of the foregoing, we agree with the Board of Appeals that appellant has not displayed the exercise of invention in producing his allegedly new combination. The old and known elements' used by appellant do not perform any new or unexpected function" }, { "docid": "20111785", "title": "", "text": "In re Leon Mann and Morris Koppelman, 18 C. C. P. A. (Patents) 1020,47 F. (2d) 370, 8 U. S. Pat. Q. 381, the same principle applies to patents of different inventors granted to a common assignee. The Board of Appeals in its decision referred specifically to the Webb et al. patent. Both the Hager and the Webb et al. patents were relied upon by the tribunals of the Patent Office as showing the equivalency of HOST and NaCN. Counsel for appellants contends that the statement of equivalency, as set out in the decisions of the tribunals of the Patent Office, cannot defeat appellants’ claims unless the equivalency is obvious or taught by the prior art. There is no question but that the matter of equivalency is a question of fact and its proof can be established in any form. Graver Tank & Mfg. Co., Inc. et al. v. Linde Air Products Co., 339 U. S. 605. It has been held many times by this court that where the disclosure of an application gives two materials or operations as equivalents, such disclosure alone may be sufficient for the rejection of a claim specific to one equivalent where the other appears in the prior art. In re Ayres, 23 C. C. P. A. (Patents) 1118, 83 F. (2d) 297, 29 USPQ 424; In re Withington, 26 C. C. P. A. (Patents) 1290, 104 F. (2d) 192, 41 USPQ 742; In re Switzer et al., 35 C. C. P. A. (Patents) 1013, 166 F. (2d) 827, 77 USPQ 156; In re Lobdell, 35 C. C. P. A. (Patents) 1091, 167 F. (2d) 634, 77 USPQ 377; In re Field, 36 C. C. P. A. (Patents) 1035, 174 F. (2d) 128, 81 USPQ 395; In re Henri-Georges Doll, supra; and In re Bloomer, 37 C. C. P. A. (Patents) 770, 178 F. (2d) 407, 84 USPQ 135. There does not seem to be any controversy that hTaChT and HCN are equivalents in the claimed process. Counsel for appellants seems to be opposed only to the manner in which the examiner sought to establish" }, { "docid": "17649661", "title": "", "text": "is argued that the exhibits referred to are only relied upon for conception and not for reduction to practice, and that the holding of the Examiner of Interferences that a rotor constructed as is shown in Exhibit 1, and inserted in the stator of Exhibit A, would not be an “operative device,” is holding Holtz to an operative test which is required in reduction to practice, but whieh is not required for conception. With respect to this feature of the case, we are of the opinion that the exhibit and the explanation of the same to Anderson would not afford sufficient evidence of conception of the invention of the counts at bar, if, when the rotor had been constructed in accordance with such teachings and inserted in the stator of Exhibit A, it failed to function under such circumstances as are shown in this case. If something else had not been conceived and done which was not then within the contemplation of the inventor, it is obvious that the invention in controversy would not have been produced. As to whether Holtz, in June, 1919, had fully performed the mental part of the invention by conceiving a device responding to the counts whieh, when constructed, would operate in the manner provided by the counts, we are constrained to be guided in our conclusion by the concurring findings of the tribunals below. The question involves highly technical matters of electrical engineering, and we can not say that the tribunals below were clearly in error in their findings. In re Wietzel et al., 39 F.(2d) 669, 17 C. C. P. A. 1079, 1082; Gleason v. Doseh et al., 39 F.(2d) 687, 17 C. C. P. A. 1012. Furthermore, it seems to us that, i£ Holtz had a full conception of a motor responding to the counts at bar in June, 1919, he would not have embarked upon the invention and construction of the star-plale rotor upon which he was awarded, priority in the companion interference ease. Conception is defined in Robinson on Patents, § 376, as follows: “The conception of the invention consists" }, { "docid": "23521575", "title": "", "text": "Patent Office tribunals to require him to establish that his claimed compounds possessed unexpected properties in fact not possessed by the prior art homologue. A homologous series is a family of chemically related compounds, the composition of which varies from member to member by CH (one atom of carbon and two atoms of hydrogen). In re Loring Coes, Jr., 36 C. C. P. A. (Patents) 1067, 173 F. (2d) 1012, 81 USPQ 369. The court’s rule on the patentability of a composition of matter over an adjacent homologue old in the art has been uniformly applied. In the case of In re Lincoln et al., 29 C. C. P. A. (Patents) 942, 126 F. (2d) 477, 53 USPQ 40, claim 14 there in issue was held properly rejected as lacking invention over references disclosing homologues of the compound described in claim 14 “there being no showing in the record that appellant’s compound has any unexpected beneficial results.” In the Hass cases, 31 C. C. P. A. (Patents) 895, 903, 908; 141 F. (2d) 122, 127, 130; 60 USPQ 544, 548, 552, it was clearly laid down that “to be patentable, novel members of a homologous series of chemical compounds must possess some unobvious or unexpected' beneficial properties not possessed by a homologous compound disclosed in the prior art.” Whether invention exists over prior art isomers and homologues is a question to be decided in each case. In re Hass et al., 31 C. C. P. A. (Patents) 903, 141 F. (2d) 127, 60 USPQ 548. Patentability is not resolved conclusively even where unexpected or unobvious beneficial properties are established to exist in novel members of a homologous series over prior art members, as the circumstances of the case may require a consideration of other factors. In re Finley, 36 C. C. P. A. (Patents) 998, 174 F. (2d) 130, 81 USPQ 383. A mere difference in degree is not the marked superiority which ordinarily will remove the unpatentability of adjacent homologues of old substances. In re Loring Goes, Jr., supra. The reason for the rule is that the characteristics normally" }, { "docid": "22356666", "title": "", "text": "Congress has set forth the appropriate standard in the APA. For the reasons stated, we have not found circumstances that justify an exception. For these reasons, the judgment of the Federal Circuit is reversed. We remand the ease for further proceedings consistent with this opinion. So ordered. APPENDIX TO OPINION OF THE COURT Review of 89 Pre-APA CCPA Patent Cases Reciting “Clear” or “Manifest” Error Standard Cases Referring to both Technical Complexity/Ageney Expertise and the Agreement (Disagreement) Within the Agency Stern v. Schroeder, 17 C. C. P. A. 670, 674, 36 F. 2d 515, 517 (1929) In re Ford, 17 C. C. P. A. 893, 894, 38 F. 2d 525, 526 (1930) In re Demarest, 17 C. C. P. A. 904, 906, 38 F. 2d 895, 896 (1930) In re Wietzel, 17 C. C. P. A. 1079, 1082, 39 F. 2d 669, 671 (1930) In re Anhaltzer, 18 C. C. P. A. 1181, 1184, 48 F. 2d 657, 658 (1931) Dover v. Moody, 18 C. C. P. A. 1188, 1190, 48 P. 2d 388, 389 (1931) In re Hornsey, 18 C. C. P. A. 1222, 1224, 48 F. 2d 911, 912 (1931) Rowe v. Holtz, 19 C. C. P. A. 970, 974, 55 F. 2d 468, 470-471 (1932) In re Fessenden, 19 C. C. P. A. 1048, 1050-1051, 56 F. 2d 669, 670 (1932) Martin v. Friendly, 19 C. C. P. A. 1181, 1182-1183, 58 F. 2d 421 422 (1932) In re Dubilier, 20 C. C. P. A. 809, 815, 62 F. 2d 374, 377 (1933) In re Alden, 20 C. C. P. A. 1083, 1084-1085, 65 F. 2d 136, 137 (1933) Farmer v. Pritchard, 20 C. C. P. A. 1096, 1101, 65 F. 2d 165, 168 (1933) In re Pierce, 20 C. C. P. A. 1170, 1175, 65 F. 2d 271, 274 (1933) Angell v. Morin, 21 C. C. P. A. 1018, 1024, 69 F. 2d 646, 649 (1934) Daley v. Trube, 24 C. C. P. A. 964, 971, 88 F. 2d 308, 312 (1937) Coast v. Dubbs, 24 C. C. P. A. 1023, 1031-1032, 88 F. 2d 734," }, { "docid": "22356665", "title": "", "text": "to the PTO. Ibid. The presence of such new or different evidence makes a factfinder of the district judge. And nonexpert judicial factfinding calls for the court/court standard of review. We concede that an anomaly might exist insofar as the district judge does no more than review PTO factfinding, but nothing in this opinion prevents the Federal Circuit from adjusting related review standards where necessary. Cf. Fregeau v. Mossingkojf, 776 F. 2d 1034, 1038 (CA Fed. 1985) (harmonizing review standards). Finally, the Circuit reasons that its stricter court/court review will produce better agency factfinding. It says that the standard encourages the creation of \"administrative records that more fully describe the metes and bounds of the patent grant” and “help avoid situations where board fact finding on matters such as anticipation or the factual inquiries underlying obviousness become virtually unreviewable.” 142 F. 3d, at 1458. Neither the Circuit nor its supporting amici, however, have explained convincingly why direct review of the PTO’s patent denials demands a stricter fact-related review standard than is applicable to other agencies. Congress has set forth the appropriate standard in the APA. For the reasons stated, we have not found circumstances that justify an exception. For these reasons, the judgment of the Federal Circuit is reversed. We remand the ease for further proceedings consistent with this opinion. So ordered. APPENDIX TO OPINION OF THE COURT Review of 89 Pre-APA CCPA Patent Cases Reciting “Clear” or “Manifest” Error Standard Cases Referring to both Technical Complexity/Ageney Expertise and the Agreement (Disagreement) Within the Agency Stern v. Schroeder, 17 C. C. P. A. 670, 674, 36 F. 2d 515, 517 (1929) In re Ford, 17 C. C. P. A. 893, 894, 38 F. 2d 525, 526 (1930) In re Demarest, 17 C. C. P. A. 904, 906, 38 F. 2d 895, 896 (1930) In re Wietzel, 17 C. C. P. A. 1079, 1082, 39 F. 2d 669, 671 (1930) In re Anhaltzer, 18 C. C. P. A. 1181, 1184, 48 F. 2d 657, 658 (1931) Dover v. Moody, 18 C. C. P. A. 1188, 1190, 48 P. 2d 388, 389" }, { "docid": "4225027", "title": "", "text": "instead of a radio relay for opening and closing a circuit in a temperature responsive system. ' hi or den et al. disclose an improvement in radio relay alarm systems for use with apparatus when fire occurs, etc. The patent to Gerst relates to a similar invention and apparatus for notifying, through the operation of radio relay signals, increased temperature or fire at any distance or place. The solicitor has briefly defined the action of the Patent Office in these words: “Succinctly summarized, the position of the two tribunals below is that Cameron shows a specific temperature responsive system for opening and closing a circuit to an electromagnetic relay controlling a furnace, that hi or den et al. and Gerst (and likewise Eoberts and Haimbaugh) show a radio relay, and that there is no invention in substituting such a radio relay for Cameron’s electromagnetic relay. With such a substitution, all the claims on appeal are met, and the examiner and the Board concurred in so holding.” Appellant urges here that Cameron “does not show basis for combination with the other references as proposed.” This court in the case of In re Milne, 31 C. C. P. A. (Patents) 918, 140 F. (2d) 1003, 60 USPQ 559, held that no such requirement has been established as a criterion in rejection of patent claims, and that in the consideration of a plurality of references whose combined teachings are relied upon to negative patentability, the question always is “could one skilled in the art with the references before him make the combination of elements * * * claimed without exercise of the inventive faculty.” To the same effect, see also In re Stover, 32 C. C. P. A. (Patents) 823, 146 F. (2d) 299, 64 USPQ 186; In re Drisch et al., 38 C. C. P. A. (Patents) 1150, 189 F. (2d) 994, 90 USPQ 96; In re Zabel et al., 38 C. C. P. A. (Patents) 832, 186 F. (2d) 735, 88 USPQ 367. There is accordingly no legal basis for appellant’s contention here that since the concept of controlling a radio" }, { "docid": "6562948", "title": "", "text": "the compound of claim 4, or that that compound has any unexpected or unobvious properties not known to be possessed by the prior art compounds. On the contrary, it is the contention of counsel for appellants that novelty alone is sufficient to lend patentability to the claims on appeal. ■ It is elementary that novelty alone is not sufficient to impart patentability to a claim. Invention must be present. See Thompson v. Boisselier, 114 U. S. 1; In re Lincoln et al., 29 C. C. P. A. (Patents) 942, 126 F. (2d) 477, 53 USPQ 40; Cuno Engineering Corp. v. Automatic Devices Corp., 314 U. S. 84, 51 USPQ 272. Counsel for appellants challenges the correctness of our decision in the case of In re Rudolph Wietzel and Wilhelm Michael, 17 C. C. P. A. (Patents) 1079, 39 F. (2d) 669, which was cited and relied upon by each of the tribunals of the' Patent Office in the instant case. In the Wietzel and Michael case, supra, certain process claims, relating to the manufacture of formamid anc! hydrocyanic acid, were involved. The claims were rejected on prior art. In that case, counsel for appellants argued in this court that the decision of the Board of Appeals was based on either presumptions or assumptions. In reply to that argument, we said: * * * It is true that, in referring to the authorities cited as refences, the board said: “We consider these disclosures sufficient to raise a presumption at least that the reactions disclosed would apply to formamid and to hydrocyanic acid 'as the nitrile of formic acid.” However, the meaning and purpose of this observation is made clear by the language immediately following: “And, where there is no real reason to suppose that the result would not be produced, there is no invention in trying it and finding out that the process is successful.” In our decision in that- case, we approved the board’s holding that as there was no real reason to suppose that the desired results would not be obtained by carrying out the process suggested by the" }, { "docid": "19238174", "title": "", "text": "use of a name falling within the standard chemical system by the patentee is no accident because all of the many compounds named in Clifford’s disclosure are deliberately named from this standard chemical system. Thus it is apparent that Clifford proposes to use N-butyl amino phenol as a gasoline stabilizer and such anticapates applicants’ claims, and this is true whether Clifford never really prepared or tried this suggested stabilizer, or what he really .used was something totally different, because the suggestion to use this substance as claimed is clear — even if the patentee was only guessing the effect Is the same. (In re Weitzel et all 400 O. G. 463 [17 C. C. P. A. (Patents) 1079].) It is not necessary that a reference patent for a device or chemical compound disclose an operative process for producing the article or product. In re Marden et al., 18 C. C. P. A. (Patents) 1119, 48 F. (2d) 428; In re Fink, 20 C. C. P. A. (Patents) 116, 62 F. (2d) 103; Cohn v. United States Corset Co., 93 U. S. 366; In re Schaeffer, 2 App. D. C. 1; In re Decker, 36 App. D. C. 104; General Electric Co. v. De Forest Radio Co. et al., 17 F. (2d) 90; One-Piece Bifocal Lens Co. v. Bisight Co. et al., 246 F. 450. We can find no error in the decisions below and therefore the decision of the Board of Appeals is affirmed." }, { "docid": "5841846", "title": "", "text": "into patent 1,706,256, issued March 19, 1929, for which reissue is now sought. It is sufficient to say that the Patent Office tribunals concluded that the counts in interference here and the subject matter of said patent 1,658,354 related to patentably distinct subject matter, and this position has not been shown to be erroneous. Concerning this ground of estoppel, the board said: A third ground of estoppel is raised but is not so vigorously pressed as are the others above discussed. The third ground is based upon Winsor’s failure to copy claims from Ronning'patent l,.658,354 within two years of its issue date. As pointed out by the examiner, the counts of this interference presumptively and actually relate to patentably distinct subject matter. Whatever the effect of failing to make claims from patent 1,65S,354 may be with respect to claims in that patent or claims which do not patentably distinguish therefrom, we think it clear that the estoppel does not extend to the claims in issue. Upon this record, and as the issue.is presented to us, we find no error in this conclusion on the part of the board. Appellant in this court also raised, but did not press, the subject of public use being a bar to Winsor under certain circumstances. It is doubtful if any of appellant’s reasons of appeal cover this question, but it is clear to us that, in this character of proceeding, we cannot concern ourselves with this phase of patent procedure. Stern et al. v. Schroeder et al., 17 C. C. P. A. (Patents) 690, 696, 36 F. (2d) 518; Derby v. Whitworth, 20 C. C. P. A. (Patents) 791, 796, 62 F. (2d) 368; Hendrickson et al. v. Ronning et al., 22 C. C. P. A. (Patents) 1040, 76 F. (2d) 137. Proceedings with which we are not here concerned take care of that question, and we do not regard it as being one upon which we need express any opinion here. Since we agree with the tribunals below that Winsor was the first to conceive and first to reduce to practice the invention" }, { "docid": "22356669", "title": "", "text": "2d 854, 857 (1940) In re Kaplan, 27 C. C. P A. 1072, 1075, 110 F. 2d 670, 672 (1940) Prahl v. Redman, 28 C. C. P A. 937, 940, 117 F. 2d 1018, 1021 (1941) In re Bertsch, 30 C. C. P A. 813, 815-816, 132 F. 2d 1014, 1016 (1942) In re Stacy, 30 C. C. P A. 972, 974, 135 F. 2d 232, 233 (1943) Poulsen v. McDowell, 31 C. C. P. A. 1006, 1011, 142 F. 2d 267, 270 (1944) Pinkerton v. Stahly, 32 C. C. P A. 723, 728, 144 F. 2d 881, 885 (1944) Cases Referring to Technical Complexity/Agency Expertise In re Engelhardt, 17 C. C. P. A. 1244, 1251, 40 F. 2d 760, 764 (1930) In re McDonald, 18 C. C. P A. 1099, 1102, 47 F. 2d 802, 804 (1931) In re Hermans, 18 C. C. P. A. 1211, 1212, 48 F. 2d 386, 387 (1931) In re Batcher, 19 C. C. P A. 1275, 1278, 59 F. 2d 461, 463 (1932) In re Carlton, 27 C. C. P A. 1102, 1105, 111 F. 2d 190, 192 (1940) Farnsworth v. Brown, 29 C. C. P. A. 740, 749, 124 F. 2d 208, 214 (1941) In re Ubbelhode, 29 C. C. P. A. 1042, 1046, 128 F. 2d 458, 456 (1942) In re Cohen, 30 C. C. P. A. 876, 880, 183 F. 2d 924, 926 (1943) In re Ruzicka, 32 C. C. P. A. 1165, 1169, 150 F. 2d 550, 553 (1945) In re Allbright, 33 C. C. P. A. 760, 764, 152 F. 2d 984, 986 (1946) Cases Referring to Agreement Within the Agency Beidler v. Caps, 17 C. C. P. A. 703, 705, 36 F. 2d 122, 123 (1929) Stern v. Schroeder, 17 C. C. P. A. 690, 696-697, 36 F. 2d 518, 521-522 (1929) Janette v. Folds, 17 C. C. P. A. 879, 881, 38 F. 2d 361, 362 (1930) In re Moulton, 17 C. C. P. A. 891, 892, 38 F. 2d 359, 360 (1930) In re Banner, 17 C. C. P. A. 1086, 1090, 39 F. 2d" } ]

[ { "docid": "5650051", "title": "", "text": "a Complaint against Greenwich, Ocwen, Trickey, Berkshire, and the Indenture Trustees (“ITs”). The Trustee asserted the following claims against Berkshire and Trickey: (1) fraudulent transfer avoidance and recovery under the Bankruptcy Code, (2) fraudulent transfer avoidance and recovery under state law, (3) breach of fiduciary duty, (4) aiding and abetting a breach of fiduciary duty, (5) common law fraud, (6) civil conspiracy, (7) objections to and subordination of their claims, and (8) declaratory relief. A motion to dismiss the Complaint was filed by the Defendants. After briefing, the Court dismissed the following counts against Berkshire and Trickey: aiding and abetting a breach of fiduciary duty, fraudulent transfer, common law fraud, civil conspiracy, and declaratory relief (as it related to the dismissed claims). Miller v. Greenwich Capital Fin. Prods., Inc., et al. (In re Am. Bus. Fin. Servs., Inc.), 360 B.R. 74, 84 (Bankr.D.Del.2007). The Trustee, however, was granted leave to amend the Complaint. Id. The Trustee filed an Amended Complaint, and Berkshire and Trickey filed a motion to dismiss the aiding and abetting a breach of fiduciary duty and the civil conspiracy counts against them. The Court denied that motion. Miller v. Greenwich Capital Fin. Prods., Inc., et al. (In re Am. Bus. Fin. Servs., Inc.), 375 B.R. 112, 120 (Bankr.D.Del.2007). After conducting discovery, Berkshire and Trickey filed a motion for summary judgment on the remaining claims. The Trustee opposed the motion. Briefing on the motion is complete. The matter is now ripe for decision. II. JURISDICTION The Court has subject matter jurisdiction over this adversary proceeding. 28 U.S.C. §§ 1334(b) & 157(b)(1). Many of the counts are core and the parties raised no objection to the Court rendering a final judgment in this proceeding. 28 U.S.C. § 157(b)(2)(A), (B), (E), (H), & (O). The Supreme Court recently held, however, that bankruptcy courts lack the constitutional authority as Article I courts to enter final judgments on state law counterclaims even if they are core proceedings. Stern v. Marshall, — U.S. -, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). In Stem, the Court held that its decision is a “narrow one”" } ]

[ { "docid": "10749115", "title": "", "text": "proof of claim does not automatically authorize the bankruptcy court to enter a final judgment against that creditor. Instead, the bankruptcy judge’s authority hinges on an analysis of whether resolution of the debtor’s independent claim is necessary to determine the creditor’s proof of claim. Such a test was employed by the Seventh Circuit in In re Ortiz, 665 F.3d 906, 914-15 (7th Cir.2011). This has led one commentator to conclude: “Without a perfect match-up of issues, such that deciding the proof of claim necessarily resolves the debtor’s claim, and vice versa, Stem would indicate that a bankruptcy judge cannot decide any state law or common issue against a third party.” After Stem, courts disagreed on whether bankruptcy judges could enter final judgments in fraudulent conveyance actions, absent the consent of the parties. Contrast for example, In re Menotte v. United States (In re Custom Contractors, LLC), 462 B.R. 901 (Bankr.S.D.Fla.2011); Burtch v. Seaport Capital, LLC (In re Direct Response Media, Inc.), 466 B.R. 626, 645-46 (Bankr.D.Del.2012) (yes)— with Heller Ehrman LLP v. Arnold & Porter, LLP (In re Heller Ehrman LLP), 464 B.R. 348 (N.D.Cal.2011); In re Teleservices Group, Inc., 456 B.R. 318 (Bankr.W.D.Mich.2011); Paloian v. Am. Express Co. (In re Canopy Fin., Inc.), 464 B.R. 770 (N.D.Ill.2011) (no). In reviewing the twelve fraudulent transfer counts brought in this case, this court concludes it has the power to enter final orders on those counts, since they were integral and necessary to resolving Defendants’ proofs of claim. All of Defendants’ proofs of claim sought payment on obligations arising solely from the sale of BCI. BCI’s adversary complaint tries to avoid that sale and the transfers of property that resulted from it. Ed, as collateral agent for himself and his sisters, filed secured Claim 243-1 on October 5, 2006, in the amount of $4,172,054.79 plus expenses. This claim represented Ed and his sisters’ lien on BCI’s collateral to secure a note issued by BCHC, the purchaser of BCI. The remaining defendant in this proceeding, Barsaled LLC, filed unsecured Claim 245-1 in the amount of $168,022.58, which represented rent due from BCI on" }, { "docid": "7476630", "title": "", "text": "labor in the [bankruptcy statute].” Id. “[T]he adjudication of fraudulent transfer and avoidance actions is a basic feature of that division of labor.” Fox v. Picard (In re Madoff), 2012 WL 990829, at *12 n. 5 (S.D.N.Y. March 26, 2012). Stem, if in fact it removes such matters from the purview of the bankruptcy courts, was not dealing with only a “slight encroachment” on the territory of the Article III courts. 131 S.Ct. at 2620 (quoting Reid v. Covert, 354 U.S. 1, 39, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957)). As the Court itself in Stem presented its holding as being “the removal of counterclaims such as Vickie’s from core bankruptcy jurisdiction,” id., a narrow view of Stem is preferable, not taking out of the purview of the bankruptcy court claims of a type that routinely fall before it. “To broadly apply Stem’s holding is to create a mountain out of a mole hill.” In Re USDigital, Inc., 461 B.R. 276, 292 (Bankr.D.Del.2011). Although Defendant cites several courts who disagree with this narrow approach to Stem, this narrow view also has found support in case law. See e.g. Zazzali v. 1031 Exchange Group (In re DBSI, Inc.), 467 B.R. 767 (Bankr.D.Del.2012); Burtch v. Seaport Capital, LLC (In re Direct Response Media, Inc.), 466 B.R. 626 (Bankr. D.Del.2012); Official Committee of Unsecured Creditors of Appalachian Fuels, LLC v. Energy Coal Resources, Inc. (In re Appalachian Fuels, LLC), 472 B.R. 731 (E.D.Ky.2012). In re Madoff, 2012 WL 990829 (S.D.N.Y. March 26, 2012). The Bankruptcy Court for the District of Delaware has repeatedly refused to apply Stem to a fraudulent conveyance claim on the basis that the holding of Stem is applicable only to a state law counterclaim by the bankruptcy estate. In re DBSI, Inc., 467 B.R. at 773. Other courts have relied on the language in Stem, noting the Supreme Court expressed its “intention to limit the application of its holding.” See e.g. Appalachian Fuels, 472 B.R. at 739. Additional reasons have been found for concluding that Stem v. Marshall does not abrogate the power of the bankruptcy court to finally" }, { "docid": "20241560", "title": "", "text": "States may be vested only in courts whose judges enjoy the protections set forth in that Article. We conclude today that Congress, in one isolated respect, exceeded that limitation in the Bankruptcy Act of 1984. The Bankruptcy Court below lacked the constitutional authority to enter a final judgment on a state law counterclaim that is not resolved in the process of ruling on a creditor’s proof of claim. Stem, 131 S.Ct. at 2620 (emphasis added). Notably, the Court did not find that the bankruptcy court lacked constitutional authority to enter a final judgment on all state law counterclaims. See id. Further, the Court emphasized that its holding would not “meaningfully change[ ] the division of labor” under § 157. Id. Most importantly, “nothing in the Supreme Court’s opinion actually limits a bankruptcy court’s authority to adjudicate the other ‘core proceedings’ identified in section 157(b)(2).” In re Safety Harbor Resort & Spa, 456 B.R. at 715. Indeed, one bankruptcy court has stated that “[t]o broadly apply Stem’s holding is to create a mountain out of a mole hill.” In re USDigital, Inc., 461 B.R. 276, 292 (Bankr.D.Del.2011). Despite the Supreme Court’s intention to limit the application of its holding, several courts have expressed uncertainty about Stem’s effect on the bankruptcy court’s authority to enter final orders and judgments in other statutorily defined core proceedings. See e.g., In re Appleseed’s Intermediate Holdings, LLC, No. 11-807, 2011 WL 6293251 (D.Del. Dec. 15, 2011); Boyd, LLC, 2011 WL 5509873. Arguably, the Supreme Court’s reliance on Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989) has called into question whether bankruptcy courts can continue to enter final orders and judgments in fraudulent conveyance claims. In Stem, the Court explained that Granfinanciera’s “distinction between actions that seek ‘to augment the bankruptcy estate’ and those that seek ‘a pro rata share of the bankruptcy res’ reaffirms that Congress may not bypass Article III simply because a proceeding may have some bearing on a bankruptcy case.... ” Stern, 131 S.Ct. at 2618 (quoting Granfinanciera, 492 U.S. at 56, 109 S.Ct. 2782) (internal citations" }, { "docid": "7476629", "title": "", "text": "its supporting case law, is effectively that Granfinanciera has made clear that fraudulent conveyance suits are exercises of the Article III judicial power, as “quintessentially suits at common law that more nearly resemble state law contract claims ... than they do creditors’ claims to a pro rata share of the bankruptcy res. ” Granfinanciera, 492 U.S. at 35, 109 S.Ct. 2782; Canopy Financial, 464 B.R. at 773; Heller Ehrman, 464 B.R. at 353-54. Stem held that only Article III courts may enter final judgment in actions that are quintessentially suits at common law. Canopy Financial, 464 B.R. at 773; Heller Ehrman, 464 B.R. at 354. Defendant argues that given the Supreme Court’s prior holding in Granfinanciera, it follows necessarily from Stem that fraudulent conveyance claims can no longer be decided in the bankruptcy court. Yet Defendant’s interpretation of Stem fails to account for the repeated emphasis of the Supreme Court that the decision was “narrow” and “does not change all that much.” 131 S.Ct. at 2620. Stem should not “meaningfully change ... the division of labor in the [bankruptcy statute].” Id. “[T]he adjudication of fraudulent transfer and avoidance actions is a basic feature of that division of labor.” Fox v. Picard (In re Madoff), 2012 WL 990829, at *12 n. 5 (S.D.N.Y. March 26, 2012). Stem, if in fact it removes such matters from the purview of the bankruptcy courts, was not dealing with only a “slight encroachment” on the territory of the Article III courts. 131 S.Ct. at 2620 (quoting Reid v. Covert, 354 U.S. 1, 39, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957)). As the Court itself in Stem presented its holding as being “the removal of counterclaims such as Vickie’s from core bankruptcy jurisdiction,” id., a narrow view of Stem is preferable, not taking out of the purview of the bankruptcy court claims of a type that routinely fall before it. “To broadly apply Stem’s holding is to create a mountain out of a mole hill.” In Re USDigital, Inc., 461 B.R. 276, 292 (Bankr.D.Del.2011). Although Defendant cites several courts who disagree with this narrow approach to" }, { "docid": "12599385", "title": "", "text": "12 against Betty. . These include counts 1 and 2 against DLI and counts 1 and 2 against Maria Dennis. . \"Although § 1334(b) defines bankruptcy jurisdiction broadly, history demonstrates the Supreme Court’s concern with containing the power of a bankruptcy court — a non-Article III tribunal.” Zahn v. Yucaipa Capital Fund (In re Almac's), 202 B.R. 648, 659 (D.R.I. 1996). . Stern, 131 S.Ct. at 2614 (the Granfinanciera court “rejected a bankruptcy trustee’s argument that a fraudulent conveyance action filed on behalf of a bankruptcy estate against a non-creditor in a bankruptcy proceeding fell within the 'public rights' exception.\"); Adelphia Recovery Trust v. FLP Grp., Inc., 2012 WL 264180 (S.D.N.Y.Jan. 30, 2012) (\"These Supreme Court precedents demonstrate that a fraudulent transfer claim involves a private right.”); Dev. Specialists, Inc. v. Orrick, Herrington & Sutcliffe, LLP, 2011 WL 6780600, at *2 (S.D.N.Y. Dec. 23, 2011) (Granfinanciera eliminated any \"debate” about whether fraudulent conveyance claims involve a private or a public right; it is the former); In re Quality Props., LLC, 2011 WL 6161010 at *5 (Bankr.N.D.Ala. Nov. 29, 2011) (fraudulent conveyance claims involve private rights). . In announcing the holding, the Supreme Court stated that \"Congress, in one isolated respect, exceeded [the Article III] limitation in the Bankruptcy Act of 1984.” Stern, 131 S.Ct. at 2620. See In re Custom Contractors, LLC, 462 B.R. 901, 905 (Bankr.S.D.Fla.2011) (\"The Stem Court did not directly address the authority of bankruptcy courts to enter final orders in fraudulent conveyance actions and explicitly intended its decision to be read narrowly.”). . \"In addition, we are not convinced that the practical consequences of such limitations on the authority of bankruptcy courts to enter final judgments are as significant as Vickie and the dissent suggest.” Stern, 131 S.Ct. at 2619. . Of course, litigants may avoid this extra work by consenting to the entry of a final order by the bankruptcy court. A majority of courts have concluded that “the bankruptcy court has the authority to render final judgments even in non-core proceedings with the consent of the parties.” In re Freeway Foods, 2012 WL 112192," }, { "docid": "10698202", "title": "", "text": "otherwise, all references to “Bankruptcy Code” or to specific statutory sections shall be to the Bankruptcy Reform Act of 1978, as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (\"BAPCPA”), Pub. L. No. 109-8, 119 Stat. 23, 11 U.S.C. § 101, et seq. All references to \"Bankruptcy Rules” shall be to the Federal Rules of Bankruptcy Procedure. . Traverse's brief initially defines her objections based on the bankruptcy court's lack of subject matter jurisdiction, but as her arguments develop, it is clear this is a mischarac-terization. As such, we address her arguments based on a dispute as to the lower court's authority to enter a final judgment in this matter. See Executive Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency, Inc.), 702 F.3d 553 (9th Cir.2012). . These powers are creatures of §§ 544 and 551, and may only be prosecuted by bankruptcy trustees (or debtors in possession) on behalf of bankruptcy estates. See Kirschner v. Agoglia (In re Refco Inc.), 461 B.R. 181, 187 (Bankr.S.D.N.Y.2011); Goldstein v. Eby-Brown, Inc. (In re Universal Mktg., Inc.), 459 B.R. 573 (Bankr.E.D.Pa.2011). . The holding in Stem is a \"narrow one,” and there the constitutional infirmity in the bankruptcy court's reliance upon 28 U.S.C. § 157(b)(2)(C) to enter final judgment was limited. 131 S.Ct. at 2620. Stem's holding was intended to have few \"practical consequences,” and the Court did \"not think that removal of counterclaims ... from core bankruptcy jurisdiction meaningfully changes the division of labor in the current statute. Id. at 2619, 2620. .Subsequent to obtaining summary judgment, the trustee obtained an order authorizing him to sell Traverse’s home. She did not appeal that order. Consequently, the trustee, while acknowledging that no sale has taken place, asserts this appeal may be moot. Although mootness implicates our jurisdiction, see Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992); Rochman v. Northeast Utils. Serv. Group (In re Pub. Serv. Co. of N.H.), 963 F.2d 469, 471 (1st Cir.1992); Kasparian v. Conley (In re Conley), 369 B.R. 67, 70-71" }, { "docid": "10758555", "title": "", "text": "“in one isolated respect” exceeded the limitations Article III of the Constitution places on who may exercise the judicial power of the United States. See id. at 2620. Citing this language, some courts have declined to apply Stem to proceedings that do not involve counterclaims brought by the bankruptcy estate against persons filing claims against the estate. Still, other courts find Stem’s reasoning calls into question the authority of bankruptcy judges to decide other core proceedings set forth in 28 U.S.C. § 157(b). See Burtch v. Seaport Capital, LLC (In re Direct Response Media, Inc.), 466 B.R. 626, 639-44 (Bankr.D.Del.2012) (discussing the “broad” and “narrow” interpretations of Stem and citing cases). Courts that interpret Stem narrowly argue that its holding removed only a debt- or’s state-law counterclaim under § 157(b)(2)(C) from the final adjudicatory authority of the bankruptcy court. See, e.g., Burtch, 466 B.R. at 642-44; In re USDigital, Inc., 461 B.R. 276, 292 (Bankr.D.Del.2011); In re Salander O’Reilly Galleries (“Salander”), 453 B.R. 106, 115 (Bankr.S.D.N.Y.2011). The “narrow interpretation” focuses on Justice Roberts’ observation that the Court’s decision would not “meaningfully change[ ] the division of labor” between the bankruptcy court and the district court. Stern, 131 S.Ct. at 2620; see, e.g., Salander, 453 B.R. at 115-16 (“Stem is replete with language emphasizing that the ruling should be limited to the unique circumstances of that case, and the ruling does not remove from the bankruptcy court its jurisdiction over matters directly related to the estate that can be finally decided in connection with restructuring debtor and creditor relations.”). Proponents of the narrow interpretation also argue that because Justice Scalia concurred in the judgment but disavowed its reasoning, Stem’s proposition that bank ruptcy judges cannot decide core proceedings that seek to “augment the estate,” such as fraudulent conveyance actions, received support from only four justices and, therefore, is not binding. See Burtch, 466 B.R. at 643. However, a growing number of courts are interpreting Stem broadly, casting doubt on a bankruptcy court’s authority to determine other core proceedings. See generally Teleservices, 456 B.R. 318. This “broad interpretation” focuses on the binary" }, { "docid": "15276501", "title": "", "text": "SPE, LLC v. LNR Partners, Inc. (In re Somerset Props. SPE, LLC), Adv. No. 11-00053, 2012 WL 3877791, at *4 (Bankr.E.D.N.C. Sept. 6, 2012). To determine whether there is constitutional authority to enter final judgment on a matter, the bankruptcy judge must consider whether “the action at issue stems from the bankruptcy itself or would necessarily be resolved in the claims allowance process.” Stern v. Marshall, 131 S.Ct. at 2618. Although, by its terms, Stem only ruled on the constitutionality of 28 U.S.C. § 157(b)(2)(C), some opinions and commentators have argued that Stem’s reasoning calls for greater application and that its separation of powers analysis applies to other subsections of § 157. E.g., FTI Consulting, Inc. v. Merit Mgmt. Grp., LP, 476 B.R. 535, 538 (N.D.Ill.2012); Murphy v. Felice (In re Felice), 480 B.R. 401, 417 (Bankr.D.Mass.2012); J. Richard Leonard, Introduction, 86 Am. Bankr.L.J. 1, 1-2 (2012); Tyson A. Crist, Stern v. Marshall: Application of the Supreme Court’s Landmark Decision in the Lower Courts, 86 Am. Bankr.L.J. 627, 635 (2012). Court opinions have been divided on whether bankruptcy judges still have constitutional authority to enter final judgment on fraudulent transfer actions; there are opinions going both ways on the issue. See, e.g., Kelley v. JPMorgan Chase & Co., 464 B.R. 854, 863 (D.Minn.2011) (holding that Stem did not warrant withdrawal of reference in adversary proceeding in which trustee asserted fraudulent transfer claims); Official Comm. Of Unsecured Creditors of Appalachian Fuels, LLC v. Energy Coal Res., Inc. (In re Appalachian Fuels, LLC), 472 B.R. 731, 741 (E.D.Ky.2012) (“Plaintiffs fraudulent transfer and preference claims are statutorily defined core claims to which the holding of Stem does not apply, and therefore the Bankruptcy Court has authority to enter final orders and judgments on such claims pursuant to 28 U.S.C. § 157(b)(1)”); Fox v. Picard (In re Madoff), 848 F.Supp.2d 469 (S.D.N.Y.2012) (in dicta); Walker, Truesdell, Roth & Assoc. v. Blackstone Grp., L.P. (In re Extended Stay, Inc.), 466 B.R. 188 (S.D.N.Y.2011) (‘Stem does not affect the ability of the bankruptcy court to rule on state law fraudulent conveyance claims.... ”); Burtch v. Seaport" }, { "docid": "10714744", "title": "", "text": "§ 157(b)(2)(C) permits the bankruptcy court to enter final judgment on [the debtor’s] counterclaim, Article III of the Constitution does not.” Id. at 2608. In so holding, the Court stated: We conclude today that Congress, in one isolated respect, exceeded that limitation in the Bankruptcy Act of 1984. The Bankruptcy Court below lacked the constitutional authority to enter a final judgment on a state law counter-claim that is not resolved in the process of ruling on a creditor’s proof of claim. Id. at 2620. Much has been written and discussed about the scope and implications of Stern v. Marshall. In re AFY, 461 B.R. at 547 (“there has been an enormous amount of discussion regarding the implications of Stern v. Marshall”); In re Civic Partners Sioux City, 2012 WL 761361, at *5 (same). Most courts, including this Court, have concluded that the Supreme Court should be taken at its word — that the holding in Stem is very narrow in spite of some language in the analysis that could be given a broader application or interpretation. See, e.g., In re AFY, 461 B.R. at 547 (the “Supreme Court itself has cautioned that its holding is a narrow one”); Tolliver v. Bank of America (In re Tolliver), 464 B.R. 720, 733 (Bankr.E.D.Ky.2012) (noting Stern’s “holding is a narrow one”); In re Civic Partners Sioux City, 2012 WL 761361, at *5 (same). The Supreme Court repeatedly used language to emphasize the narrowness of its holding. Stern, 131 S.Ct. at 2620 (noting the issue before the Court is “a narrow one” describing it as a “slight encroachment” on constitutional authority and noting again that its opinion was limited to Congress exceeding Article III in “one isolated respect”); see Tolliver, 464 B.R. at 733 (quoting In re Safety Harbor Resort & Spa, 456 B.R. 703, 715 (Bankr.M.D.Fla.2011)); In re MPC Computers, LLC, 465 B.R. 384, 388 (Bankr.D.Del.2012) (“the holding [in Stern] was a narrow one”); In re Olde Prairie Block Owner, LLC, 457 B.R. 692 (Bankr.N.D.Ill.2011) (noting this limiting language in determining that Stern was a narrow decision). The Eighth Circuit B.A.P. has specifically" }, { "docid": "12593627", "title": "", "text": "I should follow these decisions. The majority opinion in Stem contains language that could support either the broad or the narrow interpretation. See Burtch v. Huston (In re USDigital, Inc.), 461 B.R. 276, 286-92 (Bankr.D.Del.2011) (listing the instances of both broadening and narrowing language). As in Direct Response, this Court concluded in USDigital that Stern’s repeated reference to its “narrow” holding that would not “meaningfully change[ ] the division of labor” between bankruptcy and district courts meant that the narrow view is the correct view. Id. at 290 (citing Stern, 131 S.Ct. at 2619). I agree with my colleagues that Stem’s holding should be read narrowly and thus restricted to the case of a “state-law counterclaim that is not resolved in the process of ruling on a creditor’s proof of claim.” 131 S.Ct. at 2620. I note also that numerous other recent decisions have agreed with the narrow interpretation. See, e.g., Kirschner v. Agoglia (In re Refco, Inc.), 461 B.R. 181 (Bankr.S.D.N.Y.2011); Fox v. Picard (In re Madoff),-F.Supp.2d-, Nos. 10 Civ. 4652(JGK), 10 Civ. 710(JGK), 10 Civ. 7219(JGK), 11 Civ. 1298(JGK), 11 Civ. 1328(JGK), 2012 WL 990829 (S.D.N.Y. Mar. 26, 2012). Like this Court in Direct Response, both the Refco and Madoff courts concluded that a fraudulent transfer action can be adjudicated by the bankruptcy court. Direct Response, 2012 WL 112503, at *11 (“[Preference and fraudulent transfer claims arise both under Title 11 and in a case under Title 11 and are by definition ‘core’ issues under § 157(b)(2)(F) & (H) for which a bankruptcy court has authority to enter final adjudications.”); Refco, 461 B.R. at 192 (“Given the repeated and emphatic limiting language in Stem, ... and the role of fraudulent transfer claims under the Bankruptcy Code, including their management and resolution ultimately by the bankruptcy courts in the context of Congress’ bankruptcy scheme, Article III of the Constitution does not prohibit the bankruptcy courts’ determination of fraudulent transfer claims under 11 U.S.C. §§ 544 and 548 by final judgment.”); Madoff, 2012 WL 990829, at *12 n. 5 (“[Appellant] points to no language in Stem that can reasonably be" }, { "docid": "7476631", "title": "", "text": "Stem, this narrow view also has found support in case law. See e.g. Zazzali v. 1031 Exchange Group (In re DBSI, Inc.), 467 B.R. 767 (Bankr.D.Del.2012); Burtch v. Seaport Capital, LLC (In re Direct Response Media, Inc.), 466 B.R. 626 (Bankr. D.Del.2012); Official Committee of Unsecured Creditors of Appalachian Fuels, LLC v. Energy Coal Resources, Inc. (In re Appalachian Fuels, LLC), 472 B.R. 731 (E.D.Ky.2012). In re Madoff, 2012 WL 990829 (S.D.N.Y. March 26, 2012). The Bankruptcy Court for the District of Delaware has repeatedly refused to apply Stem to a fraudulent conveyance claim on the basis that the holding of Stem is applicable only to a state law counterclaim by the bankruptcy estate. In re DBSI, Inc., 467 B.R. at 773. Other courts have relied on the language in Stem, noting the Supreme Court expressed its “intention to limit the application of its holding.” See e.g. Appalachian Fuels, 472 B.R. at 739. Additional reasons have been found for concluding that Stem v. Marshall does not abrogate the power of the bankruptcy court to finally decide fraudulent conveyance actions. A fraudulent conveyance action is distinguishable from the type of state common law counterclaim that was at issue in Stem. A debtor’s common law counterclaim exists independent of the bankruptcy case and independent of the Bankruptcy Code; even following dismissal of a bankruptcy case, the debtor could bring his action in the state courts. Trustee’s power under § 548 to bring fraudulent conveyance actions is explicitly found in the Bankruptcy Code; absent Title 11, no court would have any basis to hear a Chapter 7 trustee’s claim for relief to avoid and recover a fraudulent transfer. Appalachian Fuels, 472 B.R. at 741. Nor does the holding in Granfinanciera compel the conclusion that the decision of fraudulent conveyance claims is beyond the constitutional power of the bankruptcy court. Granfinanciera addressed only the question of the Seventh Amendment jury trial rights in fraudulent transfers actions. Id. A fraudulent action may be sufficiently similar to a state common law action to support a conclusion that a defendant has the right to a jury trial" }, { "docid": "10714757", "title": "", "text": "final judgments in fraudulent conveyance actions.” Id. This Court’s job is not to extend Stem to fraudulent transfer actions based on Supreme Court dicta, and in so doing, upend the division of labor between district and bankruptcy courts that has been in effect for nearly thirty years. See Bujak, 2011 WL 5326038, at *2 (“While the Supreme Court in the future may explain its decision, and could conceivably expand the reach of Stem’s constitutional analysis, as a bankruptcy court, this Court need not do so. Instead of attempting to predict the future, this Court should carefully apply Stem’s holding in its cases, and refrain from extending that holding to facts different from those in Stern.”); Heller Ehrman, 2011 WL 4542512, at *6 (“After Stern, some courts have concluded that they cannot hear fraudulent conveyance claims as core proceedings. They are focusing on the dicta of Stem, not its holding. I believe that this approach thrusts unnecessary burdens on already overworked district courts, especially when bankruptcy courts have a particular expertise in and familiarity with avoidance actions.”). This Court concludes that the Trustee’s fraudulent transfer claims are core proceedings stemming from the bankruptcy itself for which this Court has authority to enter final orders. Stem’s narrow holding does not apply to the claims at issue. In re Custom Contractors, LLC, 462 B.R. 901, 907-08 (Bankr.S.D.Fla.2011) (footnote omitted). There, the IRS filed no claim in the case. Id. at 904 (“The IRS further argues that the resolution of this action is not required for the claims allowance process because the IRS filed no claim in this case.... ”). The court ultimately held: “the Trustee’s claims are core proceedings stemming from the bankruptcy for which the Court may enter final orders.” Id. at 910. In Official Committee of Unsecured Creditors v. Energy Coal Resources, Inc. (In re Appalachian Fuels, LLC), Civ. No. 0:11-cv-128, Adv. No. 11-01041, 2012 WL 1344984, at *5 (E.D.Ky. Apr. 18, 2012), the District Court of the Eastern District of Kentucky was faced with this issue when the defendants argued the bankruptcy court lacked jurisdiction to “enter final orders and" }, { "docid": "10714758", "title": "", "text": "actions.”). This Court concludes that the Trustee’s fraudulent transfer claims are core proceedings stemming from the bankruptcy itself for which this Court has authority to enter final orders. Stem’s narrow holding does not apply to the claims at issue. In re Custom Contractors, LLC, 462 B.R. 901, 907-08 (Bankr.S.D.Fla.2011) (footnote omitted). There, the IRS filed no claim in the case. Id. at 904 (“The IRS further argues that the resolution of this action is not required for the claims allowance process because the IRS filed no claim in this case.... ”). The court ultimately held: “the Trustee’s claims are core proceedings stemming from the bankruptcy for which the Court may enter final orders.” Id. at 910. In Official Committee of Unsecured Creditors v. Energy Coal Resources, Inc. (In re Appalachian Fuels, LLC), Civ. No. 0:11-cv-128, Adv. No. 11-01041, 2012 WL 1344984, at *5 (E.D.Ky. Apr. 18, 2012), the District Court of the Eastern District of Kentucky was faced with this issue when the defendants argued the bankruptcy court lacked jurisdiction to “enter final orders and judgments in fraudulent transfer and preference actions where ... they have not filed proof of claims against the bankruptcy estate.” The court held “Plaintiffs fraudulent transfer and preference claims are statutorily defined core claims to which the holding of Stem does not apply, and therefore the Bankruptcy Court has authority to enter final judgments on such claims pursuant to 28 U.S.C. § 157(b)(1).” Id. at *8. A bankruptcy court within this circuit also concluded: In point of fact, the process of garnering fraudulently-transferred assets back into the bankruptcy estate — to the resultant benefit of all creditor's — is one of those proceedings which is by its very nature essential to the adjustment and restructuring of debtor-creditor relationships that is at the core of federal bankruptcy jurisdiction. Kelley v. JPMorgan Chase & Co., 464 B.R. 854, 863 (Bankr.D.Minn.2011) (citation omitted). “The preference and fraudulent transfer claims arise both under Title 11 and in a case under Title 11 and are by definition ‘core’ issues under § 157(b)(2)(F) & (H) for which a bankruptcy court has" }, { "docid": "10714745", "title": "", "text": "interpretation. See, e.g., In re AFY, 461 B.R. at 547 (the “Supreme Court itself has cautioned that its holding is a narrow one”); Tolliver v. Bank of America (In re Tolliver), 464 B.R. 720, 733 (Bankr.E.D.Ky.2012) (noting Stern’s “holding is a narrow one”); In re Civic Partners Sioux City, 2012 WL 761361, at *5 (same). The Supreme Court repeatedly used language to emphasize the narrowness of its holding. Stern, 131 S.Ct. at 2620 (noting the issue before the Court is “a narrow one” describing it as a “slight encroachment” on constitutional authority and noting again that its opinion was limited to Congress exceeding Article III in “one isolated respect”); see Tolliver, 464 B.R. at 733 (quoting In re Safety Harbor Resort & Spa, 456 B.R. 703, 715 (Bankr.M.D.Fla.2011)); In re MPC Computers, LLC, 465 B.R. 384, 388 (Bankr.D.Del.2012) (“the holding [in Stern] was a narrow one”); In re Olde Prairie Block Owner, LLC, 457 B.R. 692 (Bankr.N.D.Ill.2011) (noting this limiting language in determining that Stern was a narrow decision). The Eighth Circuit B.A.P. has specifically concluded: “Unless and until the Supreme Court visits other provisions of Section 157(b)(2), we take the Supreme Court at its word and hold that the balance of the authority granted to bankruptcy judges by Congress in 28 U.S.C. § 157(b)(2) is constitutional.” In re AFY, 461 B.R. at 547-48; see In re Civic Partners Sioux City, 2012 WL 761361, at *5. This Court agrees that Stem was narrowly written and has applied it accordingly. In Civic Partners, this Court specifically stated: Stem did not strike the entire structure in 28 U.S.C. § 157 allocating the division of authority into core and non-core proceedings. Similarly, Stem did not strike down or even address the other enumer ated examples of core proceedings in § 157(b)(2) — other than the one it addressed— § 157(b)(2)(C). In re AFY, 461 B.R. at 547-48. Stem did not even strike down § 157(b)(2)(C) or otherwise state that counter-claims filed by the estate against a person filing claims against the estate are never core proceedings. Instead, Stem simply provided guidance on how" }, { "docid": "22524044", "title": "", "text": "including fraudulent transfer cases. This court agrees with the many courts that read Stern narrowly and conclude that bankruptcy courts have the constitutional authority to enter final judgments in fraudulent transfer proceedings. See, e.g., Reid v. Wolf (In re Wolf ), No. 16 A 00066, 2018 WL 2386813 (Bankr. N.D. Ill. May 24, 2018) ; Clay v. City of Milwaukee (In re Clay ), No. 14 A 2315, 2015 WL 3878454 (Bankr. E.D. Wis. June 19, 2015) ; Mason v. Ivey , 498 B.R. 540, 546 (M.D.N.C. 2013) ; KHI Liquidation Trust v. Wisenbaker Builder Services, Inc. (In re Kimball Hill, Inc. ), 480 B.R. 894 (Bankr. N.D. Ill. 2012) ; Andrews v. RBL, LLC (In re Vista Bella, Inc. ), No. 12 A 00060, 2012 WL 3778956, at *2 (Bankr. S.D. Ala. Aug. 30, 2012) ; Gugino v. Canyon Co. (In re Bujak ), No. 11 A 6038, 2011 WL 5326038, at *4 (Bankr. D. Idaho Nov. 3, 2011) ; Liberty Mutual Insur. Co. v. Citron (In re Citron ), No. 09 A 8125, 2011 WL 4711942, at *1 (Bankr. E.D.N.Y. Oct. 6, 2011). As the Kimball Hill and Clay courts noted, an action under § 548 and § 550 is a claim created by a federal statute-not a counterclaim based on state law-that reflects claims that have been part of insolvency proceedings since 1570. Kimball Hill , 480 B.R. at 906 ; Clay , 2015 WL 3878454, fn. 1. The Supreme Court itself stated in Stern that \"the question presented here is a 'narrow' one ... [and that] Congress, in one isolated respect, exceeded that limitation in the Bankruptcy Act of 1984.\" Stern , 564 U.S. at 502, 131 S.Ct. at 2620. Some courts in this circuit have concluded that bankruptcy courts do not have the authority to enter final judgments in fraudulent transfer proceedings. See FTI Consulting, Inc. v. Merit Management Group, LP , 476 B.R. 535 (N.D. Ill. 2012) ; Paloian v. American Express Co. (In re Canopy Financial, Inc. ), 464 B.R. 770 (N.D. Ill. 2011). They adopted a broad reading of Stern as well" }, { "docid": "10758554", "title": "", "text": "taxes and duties to adopt a summary procedure for the treasury to collect a debt from one of its agents.” Id. at 343. Historically, bankruptcy referees, lacking life tenure, entered final orders reviewable only by appeal on disputes incident to the administration of property in the actual or constructive possession of the court. Cf. Katchen v. Landy, 382 U.S. 323, 329, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966) (affirming Congress’s use of a summary process overseen by referees under the Bankruptcy Act of 1898 to allow, disallow, and reconsider claims against the bankruptcy estate). Therefore, without Article III status, a bankruptcy judge’s authority to adjudicate a matter must stem either from Congress’s power under Article I to enact bankruptcy laws or from Congress’s power under the “public rights” doctrine to assign the matter to a non-Artiele III tribunal for final resolution without violating the due process clause of the Fifth Amendment. Writing for the Stem majority, Chief Justice John Roberts stated that the question presented in Stem was a “narrow” one and that Congress had “in one isolated respect” exceeded the limitations Article III of the Constitution places on who may exercise the judicial power of the United States. See id. at 2620. Citing this language, some courts have declined to apply Stem to proceedings that do not involve counterclaims brought by the bankruptcy estate against persons filing claims against the estate. Still, other courts find Stem’s reasoning calls into question the authority of bankruptcy judges to decide other core proceedings set forth in 28 U.S.C. § 157(b). See Burtch v. Seaport Capital, LLC (In re Direct Response Media, Inc.), 466 B.R. 626, 639-44 (Bankr.D.Del.2012) (discussing the “broad” and “narrow” interpretations of Stem and citing cases). Courts that interpret Stem narrowly argue that its holding removed only a debt- or’s state-law counterclaim under § 157(b)(2)(C) from the final adjudicatory authority of the bankruptcy court. See, e.g., Burtch, 466 B.R. at 642-44; In re USDigital, Inc., 461 B.R. 276, 292 (Bankr.D.Del.2011); In re Salander O’Reilly Galleries (“Salander”), 453 B.R. 106, 115 (Bankr.S.D.N.Y.2011). The “narrow interpretation” focuses on Justice Roberts’ observation that" }, { "docid": "15276502", "title": "", "text": "on whether bankruptcy judges still have constitutional authority to enter final judgment on fraudulent transfer actions; there are opinions going both ways on the issue. See, e.g., Kelley v. JPMorgan Chase & Co., 464 B.R. 854, 863 (D.Minn.2011) (holding that Stem did not warrant withdrawal of reference in adversary proceeding in which trustee asserted fraudulent transfer claims); Official Comm. Of Unsecured Creditors of Appalachian Fuels, LLC v. Energy Coal Res., Inc. (In re Appalachian Fuels, LLC), 472 B.R. 731, 741 (E.D.Ky.2012) (“Plaintiffs fraudulent transfer and preference claims are statutorily defined core claims to which the holding of Stem does not apply, and therefore the Bankruptcy Court has authority to enter final orders and judgments on such claims pursuant to 28 U.S.C. § 157(b)(1)”); Fox v. Picard (In re Madoff), 848 F.Supp.2d 469 (S.D.N.Y.2012) (in dicta); Walker, Truesdell, Roth & Assoc. v. Blackstone Grp., L.P. (In re Extended Stay, Inc.), 466 B.R. 188 (S.D.N.Y.2011) (‘Stem does not affect the ability of the bankruptcy court to rule on state law fraudulent conveyance claims.... ”); Burtch v. Seaport Capital, LLC (In re Direct Response Media, Inc.), 466 B.R. 626 (Bankr.D.Del.2012); but see Heller Ehrman, LLP v. Arnold & Porter, LLP, et al. (In re Heller Ehrman), 464 B.R. 348 (N.D.Cal.2011) (holding that withdrawal of reference was unwarranted despite finding that bankruptcy court lacked constitutional authority to enter final judgment on a debtor’s fraudulent transfer claims). Opinions ruling under Stem that bankruptcy judges cannot enter final judgments in proceedings to recover fraudulent transfers under 11 U.S.C. §§ 544 and 548 have reached that conclusion because Stem noted that its holding was consistent with Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). In Granfinanciera the Supreme Court held that a non-claimant defendant to a fraudulent conveyance action under the Bankruptcy Code has a right to a jury trial. Id. at 36, 109 S.Ct. 2782. Stem equated the state law counterclaim at issue in Stem to the fraudulent transfer claim at issue in Granfinanciera, stating that both claims involved “private rights” and therefore do not fall within the “public rights”" }, { "docid": "13230960", "title": "", "text": "that the bankruptcy court could not adjudicate through final orders a fraudulent conveyance action); In re Blixseth, 2011 WL 3274042 (Bankr.D.Mont. Aug. 1, 2011) (pursuant to Stern v. Marshall, giving parties fourteen days in which to request that the district court withdraw the reference to the bankruptcy court of such action, or the court would dismiss the fraudulent conveyance claims for lack of subject matter jurisdiction), but see Samson v. Blix-seth (In re Blixseth), 463 B.R. 896 (Bankr. D.Mont.2012) (modifying prior holding). In contrast to the decisions of these courts, a significant majority of decisions rendered since Stem follow Chief Justice Robert’s admonition that the decision be applied narrowly. See Burtch v. Seaport Capital, LLC (In re Direct Response Media, Inc.), 466 B.R. 626, 644-46 (Bankr.D.Del.2012) (“The Court adopts the Narrow Interpretation and holds that Stem only removed a non-Article III court’s authority to finally adjudicate one type of core matter, a debtor’s state law counterclaim asserted under § 157(b)(2)(C). By extension, the Court concludes that Stem does not remove the bankruptcy courts’ authority to enter final judgments on other core matters[.]”); Spanish Palms Mktg., LLC v. Kingston (In re Kingston), 2012 WL 632398, at *2-3, 2012 Bankr.LEXIS 755, at *8 (Bankr.D.Idaho Feb. 27, 2012) (“The Supreme Court’s recent decision in Stem v. Marshall ... does not prohibit a bankruptcy court from entering a final judgment resolving issues under the Bankruptcy Code, which would be completely resolved in the bankruptcy process, or that flow from a federal statutory scheme. See 131 S.Ct. at 2611-15. Plaintiffs’ exception-to-discharge claims are premised solely on provisions of the Code, will be completely resolved in the bankruptcy process, and the Court has constitutional authority to issue a final judgment in regards to those claims.”); In re Ambac Fin. Grp., Inc., 457 B.R. 299, 308 (Bankr.S.D.N.Y.2011) (“Stern v. Marshall has become the mantra of every litigant who, for strategic or tactical reasons, would rather litigate somewhere other than the bankruptcy court.”); In re Salander O’Reilly Galleries, 453 B.R., 106, 115-16 (Bankr.S.D.N.Y.2011) (Stem “should be limited to the unique circumstances of that case” and “does not remove" }, { "docid": "13230961", "title": "", "text": "enter final judgments on other core matters[.]”); Spanish Palms Mktg., LLC v. Kingston (In re Kingston), 2012 WL 632398, at *2-3, 2012 Bankr.LEXIS 755, at *8 (Bankr.D.Idaho Feb. 27, 2012) (“The Supreme Court’s recent decision in Stem v. Marshall ... does not prohibit a bankruptcy court from entering a final judgment resolving issues under the Bankruptcy Code, which would be completely resolved in the bankruptcy process, or that flow from a federal statutory scheme. See 131 S.Ct. at 2611-15. Plaintiffs’ exception-to-discharge claims are premised solely on provisions of the Code, will be completely resolved in the bankruptcy process, and the Court has constitutional authority to issue a final judgment in regards to those claims.”); In re Ambac Fin. Grp., Inc., 457 B.R. 299, 308 (Bankr.S.D.N.Y.2011) (“Stern v. Marshall has become the mantra of every litigant who, for strategic or tactical reasons, would rather litigate somewhere other than the bankruptcy court.”); In re Salander O’Reilly Galleries, 453 B.R., 106, 115-16 (Bankr.S.D.N.Y.2011) (Stem “should be limited to the unique circumstances of that case” and “does not remove from the bankruptcy court its jurisdiction over matters directly related to the estate that can be finally decided in connection with restructuring debtor and creditor relations”); In re Heller Ehrman LLP, 2011 WL 4542512, at *1 (Bankr.N.D.Cal.2011) (“Withdrawal of the reference at this time would amount to an unnecessary extension of the narrow holding in Stem, would be an inefficient use of judicial resources by overburdening the district court and foregoing the services of a bankruptcy court ready, willing and able to do its job and would distort the traditional way to challenge and decide the constitutionality of a federal statute.”); In re Safety Harbor Resort and Spa, 456 B.R. 703, 714 (Bankr.M.D.Fla.2011) (holding that Stem does not preclude bankruptcy courts from adjudicating core claims, but rather that it is a “narrow” holding that Congress exceeded the limits of Article III in “one isolated respect”); In re Olde Prairie Block Owner, LLC, 457 B.R. 692, 698 (Bankr.N.D.Ill.2011) (Stern has a “narrow effect”); In re Am. Bus. Fin. Servs., Inc., 457 B.R. 314 (Bankr.D.Del.2011) (holding that" }, { "docid": "15310880", "title": "", "text": "which asserts a claim for equitable subordination, is a non-enumerated core proceeding under section 157(b)(2). Moreover, as it does not involve a state law counterclaim to a proof of claim filed by the trustee, the Supreme Court’s holding in Stem is not applicable. The inquiry in this case is limited to the statutory framework. Thus, Count 15 is a core proceeding under both the statute and the Constitution.”) (citations omitted). . Burtch v. Seaport Capital, LLC (In re Direct Response Media, Inc.), 466 B.R. 626, 644 (Bankr. D. Del. 2012) (Gross, J.) (\"The Supreme Court expressly took measures to limit the reach and breadth of its opinion and its interrelation by lower courts. The Court adopts the Narrow Interpretation and holds that Stem only removed a non-Article III court’s authority to finally adjudicate one type of core matter, a debtor’s state law counterclaim asserted under § 157(b)(2)(C). By extension, the Court concludes that Stem does not remove the bankruptcy courts’ authority to enter final judgments on other core matters, including the authority to finally adjudicate preference and fraudulent conveyance actions like those at issue before this Court.”). . Zazzali v. 1031 Exch. Grp. (In re DBSI), 467 B.R. 767, 772 (Bankr. D. Del. 2012) (Walsh, J.) (\"I agree with my colleagues that Stem's holding should be read narrowly and thus restricted to the case of a \"state-law counterclaim that is not resolved in the process of ruling on a creditor’s proof of claim.” Stem, 131 S.Ct. at 2620. I note also that numerous other recent decisions have agreed with the narrow interpretation. See, e.g., Kir-schner v. Agoglia (In re Refco, Inc.), 461 B.R. 181 (Bankr. S.D.N.Y. 2011); Fox v. Picard (In re Madoff), 848 F.Supp.2d 469 (S.D.N.Y. 2012). Thus, I find that Stem is not applicable to this action, as it does not involve a state-law counterclaim by the estate.”). . In re WCI Cmtys., Inc., No. 09-52250, 2012 WL 1981713 n.14 (Bankr. D. Del. June 1, 2012) (Carey, J.) (\"The parties offered supplemental submissions after the United States Supreme Court’s decision in Stem v. Marshall 564 U.S. 462, 131" } ]

[ { "docid": "22703262", "title": "", "text": "therefore contains the same vice as a statute delegating excessive administrative discretion. II. Although the Court has said that motion pictures are not “necessarily subject to the precise rules governing any other particular method of expression,” Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503, it is as true here as of other forms of expression that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, supra, at 70. “. . . [U]nder the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity . . . without regard to the possible consequences for constitutionally protected speech.” Marcus v. Search Warrant, 367 U. S. 717, 731. The administration of a censorship system for motion pictures presents peculiar dangers to constitutionally protected speech. Unlike a prosecution for obscenity, a censorship proceeding puts the initial burden on the exhibitor or distributor. Because the censor’s business is to censor, there inheres the danger that he may well be less responsive than a court— part of an independent branch of government — to the constitutionally protected interests in free expression. And if it is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor’s determination may in practice be final. Applying the settled rule of our cases, we hold that a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. First, the burden of proving that the film is unprotected expression must rest on the censor. As we said in Speiser v. Randall, 357 U. S. 513, 526, “Where the transcendent value of speech is involved, due process certainly requires . . . that the State bear the burden of persuasion to show that the appellants engaged in criminal speech.” Second, while the State may require advance submission of all films, in order to proceed effectively to bar all showings of unprotected" } ]

[ { "docid": "15274301", "title": "", "text": "“boilerplate” of any description. Nor is this an unusual role for federal courts, even in the absence of explicit congressional invitation. In United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971), for example, the Supreme Court addressed a statute, 19 U.S.C. § 1305(a), which authorized the seizure of obscene material presented for importation into the United States, and required the initiation of forfeiture proceedings in district court to test the validity of the seizure, but omitted any explicit time limits for those proceedings. The Court had held, however, that the first amendment required such limits. See Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971); Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Rather than strike section 1305(a) as constitutionally invalid, the Court in Thirty-Seven Photographs reasoned that “the reading into [§ 1305(a)] of the time limits required by Freedman is fully consistent with its legislative purpose,” 402 U.S. at 370, 91 S.Ct. at 1405; further that “we possess as much expertise as Congress in determining ... the speed with which pros-ecutorial and judicial institutions can, as a practical matter, be expected to function in adjudicating § 1305(a) matters,” id. at 372, 91 S.Ct. at 1406; and accordingly “construe[d] § 1305(a) to require intervals of no more than 14 days from seizure of goods to the institution of judicial proceedings for their forfeiture and no longer than 60 days from the filing of the action to final decision in the district court,” id. at 373-74, 91 S.Ct. at 1407; See United States v. $8,850, 461 U.S. 555, 563 n. 13, 103 S.Ct. 2005, 2011 n. 13, 76 L.Ed.2d 143 (construing Thirty-Seven Photographs). Similarly, in Lee v. Thornton, 538 F.2d 27 (2d Cir.1976), suit was brought by two motor vehicle owners, whose vehicles were detained by customs officials in Vermont after crossings of the Canadian border, attacking the constitutionality of the federal statutory scheme under which the vehicles had been" }, { "docid": "1321411", "title": "", "text": "MOORE, Circuit Judge. Appellant, Janus Films, Inc. (Janus), a major film distributor in the United States, sought to import a full-length feature Swedish film entitled “491” into the United States. The film arrived in New York City in October, 1964 and, thereafter, was seized under Section 305 of the Tariff Act of 1930, 19 U.S.C. § 1305, by the Collector of Customs on the ground that it was obscene. The matter was referred to the United States Attorney for the Southern District of New York who instituted proceedings in the district court seeking forfeiture of the film. At trial Janus contended (a) that the confiscation of the film was improper for the reasons that Section 305 is unconstitutional on its face, as administered by the Customs Service, and as applied in this case, and (b) that “491” was not obscene. The district court rejected Janus’ attack on the statute and the procedures employed to enforce it and held that the film was obscene. 247 F.Supp. 450. I. Is “491” “Obscene”? “A society which is unable to endure ‘491’ is a sick society; a society which is prepared to learn from it will become a sounder one.” Thus wrote a Swedish psychiatrist on January 12, 1964. Concerning the book “491,” he said: “Lars Gorling’s ‘491’ is probably the best textbook on youth psychiatry ever to have appeared. * * * The book and the film complement each other. * * * Between them Lars Gorling [the author] and Wilgot Sjoman [the film director] have created something valuable.” The primary question upon this appeal is: does the film come within the prohibition of Section 305 — in other words, is it “obscene”? The district court in an able and well-considered opinion found that the evidence presented by the Government established that “(a) To the average person applying contemporary community (national) standards, its [the film’s] dominant theme as a whole appeals to the prurient interest, (b) It is characterized by patent offensiveness, (c) It goes substantially beyond the customary limits of candor in description and representation, (d) It is utterly without redeeming social" }, { "docid": "22684931", "title": "", "text": "necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.’ ” 402 U. S., at 367, quoting 380 U. S., at 58 (emphasis added). Those cases involved, respectively, seizure of imported materials by federal customs agents and state administrative licensing of motion pictures, both civil procedures directed at absolute suppression of the materials themselves. Even in those cases, we did not require that the adversary proceeding must take place prior to initial seizure. Rather, it was held that a judicial determination must occur “promptly so that administrative delay does not in itself become a form of censorship.” United States v. Thirty-seven Photographs, supra, at 367; Freedman v. Maryland, supra, at 57—59. See Blount v. Rizzi, 400 U. S. 410, 419-421 (1971); Teitel Film Corp. v. Cusack, 390 U. S. 139, 141-142 (1968); Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70-71 (1963). In this case, of course, the film was not subjected to any form of “final restraint,” in the sense of being enjoined from exhibition or threatened with destruction. A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition. Nor, in this case, did temporary restraint in itself “become a form of censorship,” even making the doubtful assumption that no other copies of the film existed. Cf. United States v. Thirty-seven Photographs, supra, at 367; Freedman v. Maryland, supra, at 57-59. A judicial determination of obscenity, following a fully adversary trial, occurred within 48 days of the temporary seizure. Petitioner made no pretrial motions seeking return of the film or challenging its seizure, nor did he request expedited judicial consideration of the obscenity issue, so it is entirely possible that a prompt judicial determination of the obscenity issue in an adversary proceeding could have been obtained if petitioner had desired. Although we have refrained from establishing rigid, specific time deadlines in proceedings involving seizure of allegedly obscene material, we have definitely excluded from any consideration" }, { "docid": "1321441", "title": "", "text": "imposes no burden on an importer seeking a judicial determination of obscenity where material is detained by the government. Thus, specific time limitations on administrative action are unnecessary and would serve only to inject inflexibility into the regulatory scheme authorized under Section 305. The only restraint contemplated by Section 305 is that reasonably necessary intelligently to select material for judicial review and reasonably necessary for a sound judicial resolution of the obscenity question. Nothing in the section precludes a prompt final judicial determination of obscenity. Indeed, the section is designed to avoid unnecessary delay at both the administrative and judicial stages of the proceedings. The Administration of Section 305 (1) The General Practice The Collector of Customs at the initial port of entry has the responsibility for discovering obscene material and bringing it to the attention of the Bureau of Customs in Washington, D. C. The Customs Office at the Port of New York, with which we are concerned, handles approximately ninety per cent of all commercial motion picture films that importers seek to bring into the United States. Films, like other merchandise sought to be imported into this country, must be formally entered through customs and are subject to examination for dutiability and admissibility under Section 305. AH foreign imports of commercial film are required to be previewed by a customs official prior to release, i. e., examined by projection on a movie screen. 19 C.F.R. § 12.41(b). Thus, after proper entry has been made, such a film is shipped by the importer or his broker to the projection room at the office of the Collector of Customs. The film is then viewed by a customs official. If he concludes that it is admissible, he is authorized to release it immediately without further review. If he concludes that the film is “unquestionably obscene,” he is required to seize it immediately. A report of seizure is then sent to the Bureau of Customs in Washington, and the film is held pending instructions as to whether to refer the matter to the United States Attorney. See 19 C.F.R. § 12.41(c). See" }, { "docid": "22798028", "title": "", "text": "58-59. Subsequently, we invalidated Chicago’s motion picture censorship ordinance because it permitted an unduly long administrative procedure before the invocation of judicial action and also because the ordinance, although requiring prompt resort to the courts after administrative decision and an early hearing, did not assure “a prompt judicial decision of the question of the alleged obscenity of the film.” Teitel Film Corp. v. Cusack, 390 U. S. 139, 141 (1968). So, too, in Blount v. Rizzi, 400 U. S. 410 (1971), we held unconstitutional certain provisions of the postal laws designed to control use of the mails for commerce in obscene materials. Under those laws an administrative order restricting use of the mails could become effective without judicial approval, the burden of obtaining prompt judicial review was placed upon the user of the mails rather than the Government, and the interim judicial order, which the Government was permitted, though not required, to obtain pending completion of administrative action, was not limited to preserving the status quo for the shortest fixed period compatible with sound judicial administration. As enacted by Congress, § 1305 (a) does not contain explicit time limits of the sort required by Freedman, Teitel, and Blount. These cases do not, however, require that we pass upon the constitutionality of § 1305 (a), for it is possible to construe the section to bring it in harmony with constitutional requirements. It is true that we noted in Blount that “it is for Congress, not this Court, to rewrite the statute,” 400 U. S., at 419, and that we similarly refused to rewrite Maryland’s statute and Chicago’s ordinance in Freedman and Teitel. On the other hand, we must remember that, “[w]hen the validity of an act of the Congress is drawn in question, and ... a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U. S. 22, 62 (1932). Accord, e. g., Haynes v. United States, 390 U. S. 85, 92 (1968)" }, { "docid": "22798027", "title": "", "text": "each of these grounds separately. I In Freedman v. Maryland, supra, we struck down a state scheme for administrative licensing of motion pictures, holding “that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.” 380 U. S., at 58. To insure that a judicial determination occurs promptly so that administrative delay does not in itself become a form of censorship, we further held, (1) there must be assurance, “by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film”; (2) “[a]ny restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution”; and (3) “the procedure must also assure a prompt final judicial decision” to minimize the impact of possibly erroneous administrative action. Id., at 58-59. Subsequently, we invalidated Chicago’s motion picture censorship ordinance because it permitted an unduly long administrative procedure before the invocation of judicial action and also because the ordinance, although requiring prompt resort to the courts after administrative decision and an early hearing, did not assure “a prompt judicial decision of the question of the alleged obscenity of the film.” Teitel Film Corp. v. Cusack, 390 U. S. 139, 141 (1968). So, too, in Blount v. Rizzi, 400 U. S. 410 (1971), we held unconstitutional certain provisions of the postal laws designed to control use of the mails for commerce in obscene materials. Under those laws an administrative order restricting use of the mails could become effective without judicial approval, the burden of obtaining prompt judicial review was placed upon the user of the mails rather than the Government, and the interim judicial order, which the Government was permitted, though not required, to obtain pending completion of administrative action, was not limited to preserving the status quo for the shortest fixed period compatible with sound judicial" }, { "docid": "845471", "title": "", "text": "cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint. See Bantam Books, Inc. v. Sullivan, supra; A Quantity of Books v. Kansas, 378 U.S. 205 [84 S.Ct. 1723, 12 L.Ed.2d 809]; Marcus v. Search Warrant, supra [367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127]; Manual Enterprises, Inc. v. Day, 370 U.S. 478, 518-519 [82 S.Ct. 1432, 8 L.Ed.2d 639]. To this end, the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film.” The Supreme Court applied Freedman, supra, in Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968), and held that a Chicago motion picture ordinance failed to meet these standards, in part because provisions for administrative steps involved failed to assure that the license or application for injunction would occur promptly. In Embassy Pictures Corp. v. Hudson, 242 F.Supp. 975 (W.D.Tenn.1965), Chief Judge Bailey Brown of this Court held unconstitutional on its face a prior Memphis ordinance setting up a censor board for failure to meet the Freedman standards, in part because the ordinance did not require “that the censor Board act promptly and within a fixed period.” Id., at 977-978. Cf. United Artists Corp. v. Wright, 368 F.Supp. 1034 (M.D.Ala.1974) (three-judge district court invalidating Alabama obscenity statute under Freedman standards). Unlike the situation in these above-cited cases, however, in the present case the ordinance itself apparently is in substantial compliance with Freedman, except only for omission to specify a particular time within which injunctive relief must be sought. No complicated administrative procedure delays the opportunity for court action or review, and a reasonable and prompt time here may be inferred. Of course, exhibitors themselves may also, at any time, apply for declaratory relief under appropriate circumstances if in doubt. If the Board were to follow the clear mandate of ordinance section 31-13, that" }, { "docid": "17302062", "title": "", "text": "may have an appeal or the right of review as in the case of ordinary actions or suits.” . Claimant contends that section 1305 is unconstitutional because: “(a) Its invocation in the case at bar abridges the respondent’s right to freedom of speech and press under the First Amendment to the Constitution of the United States. “(b) It empowers government officials to seize and exclude imported magazines. suspected of being ‘obscene’ and to do so prior to any judicial determination that they are, in fact, ‘obscene’. “ (c) It empowers government officials to seize and exclude imported magazines preceding an advisory determination of their ‘obscenity’. “(d) It allows suppression of reading material pending a judicial determination which may be excessively delayed.” . Claimant contends that section 1305 is unconstitutional as applied and invoked in these cases because: “(a) From the time of the seizure of the above entitled publications there has been no judicial scrutiny of said publications or advisory hearing to determine their character and nature. “(b) That since the seizure of the above entitled publications an inordinate amount of time has expired wherein their distribution has been unreasonably and unconstitutionally restrained in violation of the provisions embodied in the First Amendment to the United States Constitution. “(c) It has been unconstitutionally applied because commencement of the libel proceedings was delayed for an inordinate amount of time and further the libel proceedings have been delayed unreasonably.” . See note 13, infra. . See discussion in United States v. One Carton Positive Motion Picture Film, S.D. N.Y., 248 F.Supp. 373, 376 (1965), quoted in note 15 below. See also United States v. One Book Entitled “The Adventures of Father Silas”, et al., S.D.N.Y., 249 F. Supp. 911, 913-14 (1966) ; United States v. 18 Packages of Magazines, N.D.Cal., 227 F.Supp. 198, 206, 208 (1963). . The pertinent portions of 19 C.F.R. 12.40 read as follows: <1 * * ❖ “(b) Upon the seizure of articles or matter prohibited entry by section 305, Tariff Act of 1930 (with the exception of the matter described in paragraph (a) of this section), a" }, { "docid": "7482009", "title": "", "text": "734, 13 L.Ed.2d 649 (1965), grants the claimant standing for it holds that in determining the validity of a statute in relation to the First Amendment, a court must determine what the statute can do. If the statute can violate the freedom of speech and press, then it is invalid. This it clearly does. It prohibits a person who may constitutionally view pictures of the right to receive them. To quote from Justice Brennan’s concurring opinion in Lamont v. Postmaster General, 381 U.S. 301, 308, 85 S.Ct. 1493, 1497, 14 L.Ed.2d 398 (1965), “[T]he right to receive publications is * * * a fundamental right. The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.” The First Amendment cannot be construed to permit those who have funds for foreign travel to bring back constitutionally protected literature while prohibiting its access by the less affluent. A second attack on the statute further involves Freedman v. Maryland, supra. Any system of censorship must contain, at the minimum, the following procedural safeguards if it is not to contravene the First and Fifth Amendments, (1) any restraint prior to judicial determination can be imposed only briefly, and (2) the censor in a specified brief period will go to court. The safeguards must be contained in the statute or by judicial rule. Section 1305 is a system of censorship by customs agents and is barren of safeguards. In the context of this case, the claimant concedes that the government has moved rapidly for a judicial determination of the forfeiture. Yet from the date of the seizure to January 9, 1970, the date of the court hearing, 76 days had passed. All concede that under present statutory procedures it could not have been accomplished any sooner. Section 1305 does not prohibit customs agents from long delaying judicial determination. The First Amendment does not permit such discretion. We are aware of United States v. One Carton Positive Motion Picture Film, 367 F.2d 889," }, { "docid": "20957128", "title": "", "text": "Claimant further attacks the constitutionality of Section 1305 on the ground that it provides for administrative “censorship” without adequate provision for, judicial review, and because it does not afford procedural safeguards to assure that non-obseene matter will not be seized. On the first branch of this argument, claimant relies on Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), in which the Supreme Court invalidated a state film censorship statute. On the second branch of its argument, claimant relies upon a series of recent decisions in which the Supreme Court has struck ■ down state statutes which attempted, in one way or another, to control the publication and sale of obscene material. Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961) Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964) The Supreme Court has not held 19 U.S.C. § 1305 unconstitutional. I am not persuaded that the Supreme Court’s decisions with respect to state power in this field are necessarily determinative of the power of Congress to prevent the importation into this' country of obscene books and pictures in the ' manner prescribed in Section 1305. Nor does it seem to me that this section can fairly be said to be a “censorship statute.” The section does not empower the customs officials to censor films. It merely directs them to “seize” (which, I take it, means “take possession of”) and “hold” such works “to await the judgment of the district court.” To be sure, some initial determination by the customs officials is necessary as to which works are to be held for such a judicial determination. But this is inevitable. The district court cannot reasonably be expected to view each and every one of the thousands of books and pictures and other works which are imported into the United States, most of which, after all, are innocuous. Some screening procedure must be set up." }, { "docid": "22798035", "title": "", "text": "Magazines, 300 F. Supp. 851 (ND Cal. 1969); United States v. One Carton Positive Motion Picture Film Entitled “491,” 247 F. Supp. 450 (SDNY 1965), rev’d on other grounds, 367 F. 2d 889 (CA2 1966). Similarly, we have found cases in which completion of judicial proceedings has taken as long as three, four, and even seven months. See United States v. Ten Erotic Paintings, 311 F. Supp. 884 (Md. 1970); United States v. 35 MM Color Motion Picture Film Entitled “Language of Love,” 311 F. Supp. 108 (SDNY 1970); United States v. One Carton Positive Motion Picture Film Entitled “491,” supra. We conclude that to sanction such delays would be clearly inconsistent with the concern for promptness that was so frequently articulated during the course of the Senate’s debates, and that fidelity to Congress’ purpose dictates that we read explicit time limits into the section. The only alternative would be to hold § 1305 (a) unconstitutional in its entirety, but Congress has explicitly directed that the section not be invalidated in its entirety merely because its application to some persons be adjudged unlawful. See 19 U. S. C. § 1652. Nor does the construction of § 1305 (a) to include specific time limits require us to decide issues of policy appropriately left to the Congress or raise other questions upon which Congress possesses special legislative expertise, for Congress has already set its course in favor of promptness and we possess as much expertise as Congress in determining the sole remaining question — that of the speed with which prosecutorial and judicial institutions can, as a practical matter, be expected to function in adjudicating § 1305 (a) matters. We accordingly see no reason for declining to specify the time limits which must be incorporated into § 1305 (a) — a specification that is fully consistent with congressional purpose and that will obviate the constitu tional objections raised by claimant. Indeed, we conclude that the legislative history of the section and the policy of giving legislation a saving construction in order to avoid decision of constitutional questions require that we undertake this" }, { "docid": "15531889", "title": "", "text": "authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution. Moreover, we are well aware that, even after expiration of a temporary restraint, an administrative refusal to license, signifying the censor’s view that the film is unprotected, may have a discouraging effect on the exhibitor. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584, supra. Therefore, the procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license. “Without these safeguards, it may prove too burdensome to seek review of the censor’s determination.” (pp. 58-59, 85 S.Ct. at p. 739) The Court went on to say: “How or whether Maryland is to incorporate the required procedural safeguards in the statutory scheme, is, of course, for the State to decide. But a model is not lacking: In Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469, we upheld a New York injunctive procedure designed to prevent the sale of obscene books. That procedure postpones any restraint against sale until a judicial determination of obscenity following notice and an adversary hearing. The statute provides for a hearing one day after joindér of issue; the judge must hand down his decision within two days after termination of the hearing. The New York procedure operates without prior submission to a censor, but the chilling effect of a censorship order, even one which requires judicial action for its enforcement, suggests all the more reason for expeditious determination of the question whether a particular film is constitutionally protected.” (p. 60, 85 S.Ct. at p. 740) (Emphasis added.) In Teitel Film Corp. et al. v. Cusack et al., 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968), the Court held invalid the Chicago motion" }, { "docid": "1321446", "title": "", "text": "the ground that “the time taken by the Customs Service to consider the matter of referability is only that which is reasonably necessary.” 247 F.Supp., supra, at 458. “Customs officials cannot be expected to act immediately on every motion picture * * *. The volume is too great.” United States v. One Carton Positive Motion Picture Film Entitled “491,” 248 F.Supp. 373, 377 (S.D.N.Y.1965). Any meaningful examination of the admissibility of films under Section 805 requires a reasonable time to evaluate the material. Careful consideration of questionable films is necessary if the Customs Service is to exercise responsibly its duty to select materials for judicial consideration. As the district court pointed out: “It would be manifestly unfair to both the importers and the Government for those in the Customs Service * * * to hurriedly and without adequate consideration transmit imported films to the United States District Attorney.” 247 F.Supp., supra, at 458. Moreover, careful administrative review of films of questionable admissibility both avoids the unnecessary expenditure of judicial time and effort and permits the importer to avoid the burdens of litigation, since “in the greater number of cases such review results in the film being released.” 247 F.Supp., supra, at 458. Furthermore, review de novo in Washington probably results in a more intelligent disposition of the matter. Thus, we conclude that the present procedure for reviewing films does not unduly infringe on the right of an importer to a prompt judicial determination of obscenity. This position gains support from the fact that the Bureau of Customs is aware of the serious nature of its actions and is firmly committed to a policy of expediting the review of films. Moreover, it is not without significance that local film reviewers have absolute authority to release films which they conclude are admissible. Whether the present procedure has been improperly employed in a particular case and has resulted in an unjustifiable and protracted delay is an entirely separate question. Needless to say, the Customs Service must not lose sight of the fact that “Congress gave to the courts anu juries, not to them," }, { "docid": "17302036", "title": "", "text": "Meanwhile, Customs had given notice of the libels to claimant, and claimant filed answers to all three libels on February 28. A meeting with the Court was held on March 4, a trial date was set, and the trial began on March 9. Testimony and other evidence were offered by both sides, and the case has been fully briefed and argued. Discussion of Procedure. Section 1305 of Title 19, U.S.C.A., is set out in note 1, above. The predecessors of that section have been in the Code for a long time. One which was substantially the same as the present section was held constitutional in United States v. One Obscene Book Entitled “Married Love”, S.D.N.Y., 48 F.2d 821 (1931). The present section was held unconstitutional in United States v. 18 Packages of Magazines, N.D.Cal., 238 F.Supp. 846 (1964), but that decision was rendered before Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), wherein the Supreme Court stated that “a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system”. 380 U.S. at 58, 85 S.Ct. at 738. The Court then summarized the necessary safeguards, as follows : (1) The burden of proof must rest on the censor; (2) no valid final restraint may be imposed except by judicial determination, and any restraint prior to such determination must be designed to preserve the status quo; and (3) a prompt judicial determination must be assured. 380 U.S. at 58-59, 85 S.Ct. 734. In the year since Freedman, judges in the Southern District of New York have thrice refused to hold section 1305 unconstitutional on its face, but have required that it be applied in accordance with the tests set out in Freedman. See United States v. One Carton Positive Film, (McLean, J.) 248 F.Supp. 373 (1965), and (Graven, J.) 247 F.Supp. 450 (1965); United States v. One Book entitled “The Adventures of Father Silas”, (Frankel, J.) 249 F.Supp. 911 (1966). This Court" }, { "docid": "22798034", "title": "", "text": "prompt determination of the matter by a decision of that court.” Id., at 5424 (emphasis added). Before it finally emerged from Congress, § 1305 (a) was amended in response to objections of the sort voiced above: it thus reflects the same policy considerations that induced this Court to hold in Freedman that censors must resort to the courts “within a specified brief period” and that such resort must be followed by “a prompt final judicial decision . . . .” 380 U. S., at 59. Congress' sole omission was its failure to specify exact time limits within which resort to the courts must be had and judicial proceedings be completed. No one during the congressional debates ever suggested inclusion of such limits, perhaps because experience had not yet demonstrated a need for them. Since 1930, however, the need has become clear. Our researches have disclosed cases sanctioning delays of as long as 40 days and even six months between seizure of obscene goods and commencement of judicial proceedings. See United States v. 77 Cartons of Magazines, 300 F. Supp. 851 (ND Cal. 1969); United States v. One Carton Positive Motion Picture Film Entitled “491,” 247 F. Supp. 450 (SDNY 1965), rev’d on other grounds, 367 F. 2d 889 (CA2 1966). Similarly, we have found cases in which completion of judicial proceedings has taken as long as three, four, and even seven months. See United States v. Ten Erotic Paintings, 311 F. Supp. 884 (Md. 1970); United States v. 35 MM Color Motion Picture Film Entitled “Language of Love,” 311 F. Supp. 108 (SDNY 1970); United States v. One Carton Positive Motion Picture Film Entitled “491,” supra. We conclude that to sanction such delays would be clearly inconsistent with the concern for promptness that was so frequently articulated during the course of the Senate’s debates, and that fidelity to Congress’ purpose dictates that we read explicit time limits into the section. The only alternative would be to hold § 1305 (a) unconstitutional in its entirety, but Congress has explicitly directed that the section not be invalidated in its entirety merely because" }, { "docid": "17302037", "title": "", "text": "film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system”. 380 U.S. at 58, 85 S.Ct. at 738. The Court then summarized the necessary safeguards, as follows : (1) The burden of proof must rest on the censor; (2) no valid final restraint may be imposed except by judicial determination, and any restraint prior to such determination must be designed to preserve the status quo; and (3) a prompt judicial determination must be assured. 380 U.S. at 58-59, 85 S.Ct. 734. In the year since Freedman, judges in the Southern District of New York have thrice refused to hold section 1305 unconstitutional on its face, but have required that it be applied in accordance with the tests set out in Freedman. See United States v. One Carton Positive Film, (McLean, J.) 248 F.Supp. 373 (1965), and (Graven, J.) 247 F.Supp. 450 (1965); United States v. One Book entitled “The Adventures of Father Silas”, (Frankel, J.) 249 F.Supp. 911 (1966). This Court agrees with the decision in each of those cases, and refers particularly to the excellent discussion of the legislative history in Section II of Judge Frankel’s opinion. Customs admission procedures applicable to different types of publications must embody the safeguards specified in Freedman. Reasonable speed must be used to reach an administrative decision that a libel for forfeiture shall be filed, and a judicial determination of the issue of obscenity must be made with reasonable promptness. What is reasonable in the case of one type of publication, however, may not be reasonable with respect to another type. Some material is timely and loses much of its value if there is any substantial delay. Other material, such as that with which we are dealing in these cases, may be almost timeless. The instant cases present no such problems as are involved in the previous scheduling of motion pictures or the need of a student for a particular book. The procedures condemned by Judge Frankel were established by Customs in an effort to reduce the number of" }, { "docid": "22684930", "title": "", "text": "as evidence in a criminal prosecution. In Lee Art Theatre v. Virginia, supra, the Court went so far as to suggest that it was an open question whether a judge need “have viewed the motion picture before issuing the warrant.” Here the judge viewed the entire film and, indeed, witnessed the alleged criminal act. It is not contested that the judge was a “neutral, detached magistrate,” that he had a full opportunity for independent judi cial determination of probable cause prior to issuing the warrant, and that he was able to “focus searchingly on the question of obscenity.” See Marcus v. Search Warrant, 367 U. S. 717, 731-733 (1961). Cf. Coolidge v. New Hampshire, 403 U. S. 443, 449-453 (1971); Giordenello v. United States, 357 U. S. 480, 485-486 (1958); Johnson v. United States, 333 U. S. 10, 14-15 (1948). In United States v. Thirty-seven Photographs, 402 U. S. 363 (1971), and Freedman v. Maryland, 380 U. S. 51 (1965), we held that “ ‘because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.’ ” 402 U. S., at 367, quoting 380 U. S., at 58 (emphasis added). Those cases involved, respectively, seizure of imported materials by federal customs agents and state administrative licensing of motion pictures, both civil procedures directed at absolute suppression of the materials themselves. Even in those cases, we did not require that the adversary proceeding must take place prior to initial seizure. Rather, it was held that a judicial determination must occur “promptly so that administrative delay does not in itself become a form of censorship.” United States v. Thirty-seven Photographs, supra, at 367; Freedman v. Maryland, supra, at 57—59. See Blount v. Rizzi, 400 U. S. 410, 419-421 (1971); Teitel Film Corp. v. Cusack, 390 U. S. 139, 141-142 (1968); Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70-71 (1963). In this case, of course, the film was not subjected to any form of “final restraint,” in the sense of being enjoined" }, { "docid": "1321436", "title": "", "text": "and chap. 372, Penal Law, section 484-i) prohibiting sales to minors of certain specifically described pornographic material. The power of the New York State legislature to pass these actions was recently upheld by the highest court of New York. See The Bookcase, Inc. v. Broderick, 18 N.Y. 2d 71, 271 N.Y.S.2d 947, 218 N.E.2d 668 (1966). And an ordinance of Grand Prairie, Texas, prohibiting the exhibition of any film visible from a public street or highway wherein bare breasts and bare buttocks are shown has recently been upheld. Chemline, Inc. v. City of Grand Prairie, 364 F.2d 721 (5th Cir. 1966). What other censors elsewhere may do with this film is not for present adjudication. The sole question before us is whether “491” is so “utterly without redeeming social value” (Memoirs, supra, 383 U.S. at 419, 86 S.Ct. 975) that it may be constitutionally proscribed as obscene. Upon the record, we cannot so declare it. II. The Administrative Procedures Prescribed and Carried Out Here Under Section 305 Do Not Offend Constitutional Standards Janus’ claim that any federal system of censorship which contemplates restraint prior to distribution is violative of the First Amendment must be rejected. In Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L. Ed.2d 403 (1961), the Supreme Court held that a requirement of submission of motion pictures in advance of distribution to a system of censorship was not per se unconstitutional. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 n. 10, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). While the Times Film case dealt with a state censorship system, there is no doubt that Congress can “constitutionally authorize a noncriminal process [for censorship] in the nature of a judicial proceeding under closely defined procedural standards,” Manual Enterprises, Inc. v. Day, 370 U.S. 478, 519, 82 S.Ct. 1432, 1453, 8 L.Ed.2d 639 (1962) (Brennan, J., concurring); see 18 U.S.C. § 1461 (bars use of mails to ship obscene materials), whether or not stricter standards should be applied to federal censorship systems than are applied to state censorship systems. See Memoirs," }, { "docid": "1321440", "title": "", "text": "seizure [of such material] * * * the collector shall transmit information thereof to the district attorney * * * who shall institute proceedings in the district court * * (emphasis added). The Collector of Customs is not authorized under any circumstances finally to determine whether material seized is obscene. His sole function is to select material for judicial review. The power to determine questions of obscenity is vested solely in the courts. In fact, the legislative history of Section 305 indicates great hostility, on the part of the Congressmen who devised the section, to administrative censorship and manifests their desire that the question of obscenity should “be quickly submitted to the district attorney and to the court for determination.” 72 Cong.Rec. 5422 (1930) (remarks of Senator Swanson); United States v. One Book Entitled “The Adventures of Father Silas,” supra, 249 F. Supp. at 915-919; see Manual Enterprises, Inc. v. Day, supra, 370 U.S. at 514-516, 82 S.Ct. at 1450-1452. Moreover, the section does not authorize lengthy administrative proceedings pri- or to judicial review and imposes no burden on an importer seeking a judicial determination of obscenity where material is detained by the government. Thus, specific time limitations on administrative action are unnecessary and would serve only to inject inflexibility into the regulatory scheme authorized under Section 305. The only restraint contemplated by Section 305 is that reasonably necessary intelligently to select material for judicial review and reasonably necessary for a sound judicial resolution of the obscenity question. Nothing in the section precludes a prompt final judicial determination of obscenity. Indeed, the section is designed to avoid unnecessary delay at both the administrative and judicial stages of the proceedings. The Administration of Section 305 (1) The General Practice The Collector of Customs at the initial port of entry has the responsibility for discovering obscene material and bringing it to the attention of the Bureau of Customs in Washington, D. C. The Customs Office at the Port of New York, with which we are concerned, handles approximately ninety per cent of all commercial motion picture films that importers seek to bring" }, { "docid": "7482010", "title": "", "text": "involves Freedman v. Maryland, supra. Any system of censorship must contain, at the minimum, the following procedural safeguards if it is not to contravene the First and Fifth Amendments, (1) any restraint prior to judicial determination can be imposed only briefly, and (2) the censor in a specified brief period will go to court. The safeguards must be contained in the statute or by judicial rule. Section 1305 is a system of censorship by customs agents and is barren of safeguards. In the context of this case, the claimant concedes that the government has moved rapidly for a judicial determination of the forfeiture. Yet from the date of the seizure to January 9, 1970, the date of the court hearing, 76 days had passed. All concede that under present statutory procedures it could not have been accomplished any sooner. Section 1305 does not prohibit customs agents from long delaying judicial determination. The First Amendment does not permit such discretion. We are aware of United States v. One Carton Positive Motion Picture Film, 367 F.2d 889, 899 (2d Cir. 1966), which stated, “[Sjpecific time limitations on administrative action are unnecessary and would serve only to inject inflexibility into the regulatory scheme * * That may or may not be true. We only note that such is contrary to the explicit holding in Freedman, supra 380 U.S. at 58-59, 85 S.Ct. at 739, “[T]he exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period * * go to court * * We must follow Freedman. We decline to consider as unnecessary the remaining attacks on the constitutionality of § 1305, i. e., (1) vagueness and (2) the law set forth in Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), and A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964). Pursuant to the provisions of Rule 52 of the Federal Rules of Civil Procedure, this memorandum opinion shall constitute the court’s findings of fact and conclusions of law. In" } ]

[ { "docid": "2766959", "title": "", "text": "on appeal, he may not assign error in this respect except on the ground of plain error. Fed.R.Crim.P. 30, 52(b). The court gave the following instructions to the jury concerning the element of “under color of official right”: “Extortion under color of official right means the obtaining of money or property by a public employee through the wrongful use of his position where the money or property obtained was not lawfully due and owing to him or to the position which he held. It includes the misuse of one’s position of employment in order to induce payments. The government must prove beyond a reasonable doubt that it was reasonable for the persons described in Counts II through XI to believe that the defendant had power to obtain favorable results in the FBI-created cases. I further instruct you that in considering whether extortion under color of official right was committed, it does not matter who induced the payments. If the public employee knows that the motivation of the alleged victim named in the indictment focused on the employee’s public position and that the money or property that was allegedly paid by the victim was not lawfully due and owing to the employee or to the office which he held, that is sufficient to satisfy the requirements of the law of extortion under color of official right so long as I have said the government also proved that it was reasonable for the persons described in counts II through XI to believe that the defendant had the power to obtain favorable results in the FBI-created cases. Extortion under color of specific [sic] right does not require proof of specific acts by an employee demonstrating force, threat or use of fear so long as the alleged victim consented because of the office of [sic] position held by the employee to whom the alleged victim paid the money or property. The public employee need not control the result promised so long as the extorted party possesses a reasonable belief in the employee’s power to obtain the results.” The court also gave an interim instruction" } ]

[ { "docid": "423515", "title": "", "text": "arguendo, that Butler’s conduct consisted of the mere passive acceptance of a bribe, it is the position of the United States that such conduct, whether the solicitation of, or the mere acceptance of, illicit payments for the desired “official action”, was a clear abuse of Butler’s office, falling within the proscriptions of the Act. We agree. Butler’s contention that a distinction under the Act is drawn between the voluntary payment of a bribe, and extortion, by way of the inducement or initiation of such payment, is a technical overdrawn distinction which is in keeping with neither the legislative intent of the statute, nor recent case law holding that in cases of misuse of official power, bribery and extortion are not mutually exclusive. United States v. Harding, 563 F.2d 299 (6th Cir. 1977), United States v. Kahn, 472 F.2d 272 (2nd Cir. 1973) cert. denied, 411 U.S. 982, 93 S.Ct. 2270, 36 L.Ed.2d 958 (1973), United States v. Hall, 536 F.2d 313 (10th Cir. 1976), cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285 (1976), United States v. Hathaway, 534 F.2d 386 (1st Cir. 1976), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976). As this court recently held in United States v. Harding, supra, a showing that the motivation for the payment focuses on the recipient’s office, regardless of who induces the payments, is sufficient to convict under the Hobbs Act. See also United States v. Braasch, 505 F.2d 139 (7th Cir. 1974) cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975). In United States v. Nardello, 393 U.S. 286, 289, 89 S.Ct. 534, 536, 21 L.Ed.2d 487 (1969), Chief Justice Warren discussed the meaning of extortion in the Hobbs Act and stated: “At common law a public official who under color of office obtained the property of another not due either to the office or the official was guilty of extortion. In many States, however, the crime of extortion has been statutorily expanded to include acts by private individuals under which property is obtained by means of force, fear or threats.”" }, { "docid": "6503264", "title": "", "text": "Hobbs Act’s two branches represent, on one hand, the early common law definition of extortion, and, on the other hand, the present day extension of the statute to individuals who are not public officials. Blackstone described the crime of extortion as “an abuse of public justice, which consists in any officer’s unlawfully taking, by colour of his office, from any man, any money or thing of value that is not due him, or more than is due, or before it is due.” 4 W. Blackstone, Commentaries 140-41. See United States v. Harding, 563 F.2d 299, 306 (6th Cir.1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978); United States v. Butler, 618 F.2d 411, 418 (6th Cir.1980), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980). United States v. Kenny, 462 F.2d 1205 (3d Cir.1972), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972), often regarded as the case that placed the official imprimatur on the disjunctive reading of the statute states: [Pjrivate persons may violate the statute by use of fear and public officials may violate the act by use of fear, persons holding public office may also violate the statute by a wrongful taking under color of official right. Id. at 1229. To prevail on the theory that there has been a constructive amendment to the indictment, appellant must show that his fifth and sixth amendment rights have been infringed. The fifth amendment requires that a defendant be tried only on a charge made by the grand jury. Stirone v. United States, 361 U.S. 212, 216-17, 219, 80 S.Ct. 270, 272-73, 274, 4 L.Ed.2d 252 (relying heavily on Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), defendant may not be convicted on a charge not made by the grand jury); Ex parte Bain, 121 U.S. 1, 5-6, 7 S.Ct. 781, 783-84, 30 L.Ed. 849 (1887) (fifth amendment mandates that indictment may not be amended without resubmission to grand jury); United States v. Ylda, 653 F.2d 912, 914 (5th Cir.1981) (“The misconstruction of an indictment" }, { "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": "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": "121576", "title": "", "text": "Butler, 618 F.2d 411, 417-18 (6th Cir.), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980); United States v. Price, 617 F.2d 455, 458 (7th Cir.1979); United States v. Braasch, 505 F.2d 139, 151 (7th Cir.1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975). However, we do not read those decisions to permit a conviction for extortion under col- or of official right absent evidence that the public official misused his office to obtain the benefits. Certainly the facts of those cases, and of most reported decisions construing extortion under color of official right, establish conduct from which inducement can readily be inferred. See United States v. Jannotti, 673 F.2d at 596 (payment made after “assurances that there would be no obstacles” to construction of hotel project); United States v. Hedman, 630 F.2d at 1188-91 (city building inspectors accepted concealed payoffs in return for nonenforcement of housing code); United States v. Butler, 618 F.2d at 418 (town public works commissioner accepted money from developer in exchange for moving 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" }, { "docid": "121635", "title": "", "text": "denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (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); United States v. Butler, 618 F.2d 411, 417-18 (6th Cir.), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980). The Seventh Circuit, whose position was later adopted by the Third Circuit, summarized its view as follows: “It is settled law in this Circuit as well as others that in a Hobbs Act prosecution for extortion under color of official right it is unnecessary to show that the defendant induced the extortionate payment or that the payor was entitled to the benefit obtained from such payment. The government is merely required to prove that a public official obtained money to which he was not entitled and which he obtained only because of his official position. ” United States v. Hedman, supra, 630 F.2d at 1196. (Emphasis added, footnote omitted). In United States v. Jannotti, supra, the Third Circuit observed: “At common law, extortion was defined as ‘any officer’s unlawfully taking, by color of his office, from any man, any money or thing of value that is not due to him.’ 4 W. Blackstone, Commentaries *141. The requirement that the money be taken ‘by color of his office’ meant ‘simply that the officer must have taken money not due him for the performance of his official duties.’ ... “The holding in our cases that the Hobbs Act covers the acceptance of bribes by public officials even when payment was not obtained by force, threats, or use of fear, and the further suggestion that there need be no inducement or prior request for such payments, accords with the view taken by other courts of appeals. ” United States v. Jannotti, supra, 673 F.2d at 595 (emphasis added, citation omitted). Indeed, in United States v. Trotta, 525 F.2d 1096, 1100 (2d Cir.1975), we quoted with approval the following from the Seventh Circuit’s decision (per opinion of Supreme Court Justice Tom C. Clark, sitting by designation) in United States" }, { "docid": "6503263", "title": "", "text": "124 (5th Cir.1980), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981) (eight circuits agree that “under color of official right” charge does not require proof of threats); United States v. Harding, 563 F.2d 299, 305 (6th Cir.1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1968) (Hobbs Act language is disjunctive); United States v. Hathaway, 534 F.2d 386, 393 (1st Cir.1976), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976) (statute is phrased in the disjunctive); United States v. Kenny, 462 F.2d 1205 (3d Cir.1972), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972) (seminal case, setting forth the proposition that “under color of official right” language is disjunctive). To comprehend this disjunctive interpretation it is imperative to view in historical perspective the origin of the bifurcated nature of the statute’s language. Because the legislative history is silent on the congressional intent in promulgating the disjunctive language, the meaning of the language is therefore interpreted through the development of case law. The Hobbs Act’s two branches represent, on one hand, the early common law definition of extortion, and, on the other hand, the present day extension of the statute to individuals who are not public officials. Blackstone described the crime of extortion as “an abuse of public justice, which consists in any officer’s unlawfully taking, by colour of his office, from any man, any money or thing of value that is not due him, or more than is due, or before it is due.” 4 W. Blackstone, Commentaries 140-41. See United States v. Harding, 563 F.2d 299, 306 (6th Cir.1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978); United States v. Butler, 618 F.2d 411, 418 (6th Cir.1980), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980). United States v. Kenny, 462 F.2d 1205 (3d Cir.1972), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972), often regarded as the case that placed the official imprimatur on the disjunctive reading of the statute states: [Pjrivate persons may violate" }, { "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": "6503271", "title": "", "text": "We discount that argument on two points. First, the accepted interpretation of the “under color of official right” language has evolved in such a manner that it does not exclude the introduction of proof of threats inherent in the public office. The rationale is, that subsumed in the official title lies a dormant power, the office itself becomes the threat, the ominous spec-tre capable of retaliating when provoked. See United States v. Margiotta, 688 F.2d 108, 132 (2d Cir.1982), U.S.App. pnd’g, (“The use of public office, with the authority to grant or withhold benefits, takes the place of pressure or threats.”); United States v. Butler, 618 F.2d 411, 418 (6th Cir.1980), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980) (“The coercive element on the part of the official, and the ‘duress’ or ‘fear’ element on the part of the ‘victim’ are implied from the public official’s position of authority over the victim.”); United States v. Hathaway, 534 F.2d 386, 394 (1st Cir.1976), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976) (“The misuse of public office is said to supply the element of coercion.”); United States v. Mazzei, 521 F.2d 639, 645 (3d Cir.1975), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975) (“Under the common law definition, color of public office took the place of the coercion implied in the ordinary meaning of the word ‘extortion.’ ”). The testimony that described the witnesses’ perceived fear of possible retribution through official fiat does not amount to a new charge, that of “obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear.” 18 U.S.C. § 1951(b)(2). It bore directly on what “under color of official right” encompasses: the ever-present opportunity of a public official to misuse his power under the guise of official duty. The district court did not err in admitting the testimony under the state of mind exception to the hearsay rule. Fed.R. Evid. 803(3). 18 U.S.C. § 1951 requires as an essential element of proof the state of" }, { "docid": "121634", "title": "", "text": "“action” must be. The public is entitled to a more definitive standard than the majority here provides for determining what constitutes wrongful use of public office inducing the bestowal of benefits upon the official “under color of official right.” Several other circuits, interpreting the Hobbs Act liberally as Congress intended, see Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960) (the Hobbs Act “speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence”), have required less to be shown than that prescribed by Judge Platt’s charge. They hold it to be sufficient for the government to establish only that the government official accepted the money or benefits with knowledge that they were conferred because of his or her public office and that it is unnecessary for him to “take the initiative” or “induce payment” to violate the Act. 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); 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); United States v. Butler, 618 F.2d 411, 417-18 (6th Cir.), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980). The Seventh Circuit, whose position was later adopted by the Third Circuit, summarized its view as follows: “It is settled law in this Circuit as well as others that in a Hobbs Act prosecution for extortion under color of official right it is unnecessary to show that the defendant induced the extortionate payment or that the payor was entitled to the benefit obtained from such payment. The government is merely required to prove that a public official obtained money to which he was not entitled and which he obtained only because of his official position. ” United States v. Hedman, supra, 630 F.2d at 1196. (Emphasis added, footnote omitted). In United States v. Jannotti, supra, the Third Circuit observed: “At" }, { "docid": "21550663", "title": "", "text": "are inappo-site for our present purposes. For instance, one thing that we do know from Evans is that a Hobbs Act conviction for extortion under color of official right will be sustained in campaign contribution cases when the government establishes the existence of a quid pro quo, as set forth in McCormick and informed by Evans. From this proposition, it follows a fortiori that in non-campaign contribution cases, which are perhaps less, but clearly not more, difficult to prove from the government’s standpoint, the same showing of a quid pro quo also would suffice. Additionally, Evans approved of this court’s decision in United States v. Butler, 618 F.2d 411 (6th Cir.), cert. denied, 447 U.S. 927, 100 S.Ct. 8024, 65 L.Ed.2d 1121 (1980). In Butler, a non-campaign contribution public extortion case, we noted the congruence of the crimes of public extortion and bribery. We elaborated: Assuming arguendo, that Butler’s conduct consisted of the mere passive acceptance of a bribe, it is the position of the United States that such conduct, whether the solicitation of, or the mere acceptance of, illicit payments for the desired “official action”, was a clear abuse of Butler’s office, falling within the proscriptions of the [Hobbs] Act. We agree. Butler’s contention that a distinction under the Act is drawn between the voluntary payment of a bribe, and extortion, by way of the inducement or initiation of such payment, is a technical overdrawn distinction which is in keeping with neither the legislative intent of the statute, nor recent case law holding that in eases of misuse of official power, bribery and extortion are not mutually exclusive. Id. at 417 (citing, inter alia, United States v. Harding, 563 F.2d 299 (6th Cir.1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978)); see also Evans, -— U.S. at-, 112 S.Ct. at 1885 (noting equivalence of both crimes at common law). It is against this backdrop that we evaluate Blandford’s challenges to the jury instructions and the sufficiency of the evidence relative to his extortion conviction. The former is easily dismissed. Apparently operating under the mistaken assumption" }, { "docid": "22221067", "title": "", "text": "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 the jurors that (1) a conviction would have to be based on exploitation of the payor’s fear, and (2) a defendant must have “wrongfully used” that fear to induce the payor’s consent. These instructions plainly implied that unintentional conduct would not suffice. See Scacchetti, 668 F.2d at 649 (“Use of power ‘to obtain money’ clearly refers to the purpose of the defendant.”). Given the setting in which the challenged comment occurred and the court’s general instruction that any Hobbs Act violation must entail willful and knowing conduct, we see no infirmity. VIII. CROSS-EXAMINATION Before the grand jury, the Blacke brothers admitted bribing Jon Straight, a Board member, by means of cash gifts and procurement of male prostitutes. The Blackes’ testimony was obtained through grants of immunity covering myriad prosecutable offenses, including their not-so-straight arrangements with Straight. The trial judge allowed inquiry into the bribery, but not into the recruitment of prostitutes or George Blacke’s sexual orientation. Appellants assert that the limits placed on cross-examination abridged their sixth amendment rights and comprised an abuse of the" }, { "docid": "19059968", "title": "", "text": "imprisoned not more than twenty years, or both. 18 U.S.C. § 1951(a). 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). As we explained in United States v. Manzo, 636 F.3d 56 (3d Cir.2011): Congress sought to proscribe coercive activity through enactment of the Hobbs Act. Under the terms of the Hobbs Act, a person can only commit extortion in one of two ways: (1) through threatened force, violence or fear or (2) under color of official right. See 18 U.S.C. § 1951(b)(2). Both of these types of extortion are inherently coercive. Id. at 65. Whereas in a case of extortion by force, violence, or fear, the acts or threats supply the coercion, “when proceeding under a ‘color of official right’ theory, the ‘misuse of public office is said to supply the element of coercion.’ ” Id. (quoting United States v. Hathaway, 534 F.2d 386, 393 (1st Cir.1976)); see also Evans v. United States, 504 U.S. 255, 266, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992) (adopting the majority rule that “the coercive element” of Hobbs Act extortion undér color of official right “is provided by the public office itself’). In other words, the importance of a defendant’s public office or official act to a Hobbs Act charge is its coercive effect on the payor. Accordingly, after reviewing the legislative history and evaluating competing constructions of the statute, the Supreme Court held in Evans that to prove a conviction for extortion under col- or of official right, “the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.” 504 U.S. at 268,112 S.Ct. 1881. We interpreted Evans in United States v. Antico, 275 F.3d 245 (3d Cir.2001), and explained that “no ‘official act’ ... need be proved to convict under the Hobbs Act.” Id. at 257. Rather, we focus on (1) the motivation of the payor, that" }, { "docid": "22165108", "title": "", "text": "with the view taken by other courts of appeals. In United States v. Hedman, 630 F.2d 1184 (7th Cir. 1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981), the government proved at trial that defendants, city building inspectors, accepted money from builders who failed to conform with the building code, but no solicitation of the bribes was shown. In rejecting defendants’ argument that the government must show that the officials were the “initiators” or “inducers” of the alleged payments, the court stated: It is settled law in this Circuit as well as others that in a Hobbs Act prosecution for extortion under color of official right it is unnecessary to show that the defendant induced the extortionate payment .... The Government is merely required to prove that a public official obtained money to which he was not entitled and which he obtained only because of his official position. Id. at 1195 (footnote omitted). The Sixth Circuit has also held that the “technical overdrawn distinction” which the public officials sought to make there between bribery and extortion under the Hobbs Act is not in keeping with the legislative intent, and that “in cases of misuse of official power, bribery and extortion are not mutually exclusive.” United States v. Butler, 618 F.2d 411, 417 (6th Cir. 1980), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980) and 449 U.S. 1089, 101 S.Ct. 881, 66 L.Ed.2d 816 (1981). Defendants argue that in each of the cases in which this court seemed to interpret the Hobbs Act to cover passive acceptance of a bribe by a public official, the defendant had in fact engaged in some conduct which could be construed as inducement of the payment. Even if the Hobbs Act were to be construed as requiring some inducement on the part of the public official, defendants’ conduct in this case hardly constituted merely passive acceptance of the payments. The evidence does not fit the defendants’ posited illustration of an unexpected bribe mailed to a public official’s office. On the contrary, rather than remaining in their own" }, { "docid": "11662285", "title": "", "text": "because of the office or position held by the official who obtained the money. If the public official knows the motivation of the victim focuses on the public official’s office and money is obtained by the public official which was not lawfully due and owing to him or the office he represented, that is sufficient to satisfy the requirements of the law of extortion under color of official right. The mere voluntary payment of money would not constitute extortion. United States v. Hedman, 630 F.2d 1184, 1194-95 n.4 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981). The line is a fine one between an altogether “voluntary” payment and the conferring of a benefit on someone who holds a particular public office in fear of retaliation or in expectation of benefit. As the defendant points out, if read literally, the Hedman language could arguably prohibit a public official from personally soliciting a campaign contribution. In several other Hobbs Act cases cited by the government, there was some showing that the defendant provided favors or withheld the negative force of his office if the victim made some payment. See, e.g., United States v. Grande, 620 F.2d 1026, 1031-32 (4th Cir.1980), cert. denied, 449 U.S. 830, 101 S.Ct. 98, 66 L.Ed.2d 35 (1980) (official misused the office to favor the payor by supplying information and channeling contracts); United States v. Hathaway, 534 F.2d 386, 394-96 (1st Cir.1976), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976) (payor feared that, without making payment, he would not receive construction contract; the defendant stated he was under pressure to award contract to others, but after payor gave defendant money, payor received contract); United States v. Braasch, 505 F.2d 139, 150-52 (7th Cir.1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975) (roving police officers shook down bars that did not pay up). In the case at hand, there was not much direct evidence as to why the liquor companies continued to authorize the withdrawals of liquor by the defendant. On only one of the" }, { "docid": "13327234", "title": "", "text": "than the acceptance of a bribe, and that his conduct was therefore not extortionate in character. The government need not demonstrate that a defendant, charged with extortion under color of official' right, has obtained the property of another through the use of force, duress, fear or the threat of same. The evidence need only demonstrate that the public official has obtained from the “victim” something of value to which the official is not entitled, in return for something that should have been provided without payment, The office held by the official provides the coercive impetus which generates the payment. In the instant case, the alderman’s duties included the objective and unbiased evaluation of applications for zoning variances. Staszcuk was paid money by virtue of his office as alderman so that the powers of that office would not be misused to the detriment of the payor, or at a minimum, to insure that the zoning application would receive the fair and unbiased consideration which it should have been afforded without the encouragement of additional compensation. Thus, the office provided the duress which rendered the acceptance of money by Staszcuk extortion under color of official right. That is not to say, however, that, as the government contends in the instant case, there is no distinction between the acceptance of a bribe by a public official and extortion under color of official right. For example, assume that a public official has been paid a sum of money to induce him to use his position and influence to obtain a building permit on behalf of an applicant who is clearly not entitled under the law to such a permit. In such a case, the money which the public official receives is not being paid to prevent the coercive use of his office, but rather to assist the payor in his efforts to obtain something to which he is not lawfully entitled. As the court stated in United States v. Pranno, 385 F.2d 387, 390 (7th Cir. 1967) “it might be solely a bribe and not extortion if the record showed that the issuance of" }, { "docid": "6503270", "title": "", "text": "Judd Kassuba asked me if I thought that Senator — if—if Senator Kelly could, in fact, do the type of things that he alluded to, such as having our contracts canceled in Massachusetts or if he could help us? And I said: There wasn’t any question about it. I didn’t feel — think that we ought to put him to — put it to the test. 8. Masiello: Well, he just said that he felt that if — if we didn’t get these checks to him that he was going to start raising all kinds of heck. 9. Masiello: I told Mr. Kassuba essentially the same thing; that we better not put Senator Kelly to the test; that I thought he could carry out all the threats that he made about canceling contracts or rescinding them or delaying the — the progress of the contracts. Turning to the two-step analysis set forth above, we first find that the appellant has not shown that that testimony did in fact change the elements of the offense charged. We discount that argument on two points. First, the accepted interpretation of the “under color of official right” language has evolved in such a manner that it does not exclude the introduction of proof of threats inherent in the public office. The rationale is, that subsumed in the official title lies a dormant power, the office itself becomes the threat, the ominous spec-tre capable of retaliating when provoked. See United States v. Margiotta, 688 F.2d 108, 132 (2d Cir.1982), U.S.App. pnd’g, (“The use of public office, with the authority to grant or withhold benefits, takes the place of pressure or threats.”); United States v. Butler, 618 F.2d 411, 418 (6th Cir.1980), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980) (“The coercive element on the part of the official, and the ‘duress’ or ‘fear’ element on the part of the ‘victim’ are implied from the public official’s position of authority over the victim.”); United States v. Hathaway, 534 F.2d 386, 394 (1st Cir.1976), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50" }, { "docid": "16687587", "title": "", "text": "Cir. 1980), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981); United States v. Butler, 618 F.2d 411, 417-18 (6th Cir.), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980); United States v. Phillips, 577 F.2d 495, 503 (9th Cir.) (Phillips), cert. denied, 439 U.S. 831, 99 S.Ct. 107, 58 L.Ed.2d 125 (1978); United States v. Hall, 536 F.2d 313, 320-21 (10th Cir.), cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285 (1976); United States v. Hathaway, 534 F.2d 386, 393-94 (1st Cir.) (Hathaway ), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976); United States v. Price, 507 F.2d 1349 (4th Cir.1974); United States v. Braasch, 505 F.2d 139, 151 (7th Cir.1974) (Braasch). The Second Circuit stands as the lone voice of dissent. See United States v. O’Grady, 742 F.2d 682, 687-89 (2d Cir.1984) (en banc) (O’Grady). Under the prevailing interpretation, in the crime of extortion “under color of official right,” the actus reus is the act of taking, receiving, or accepting the payment, even if such acts are wholly “passive.” See United States v. Holzer, 816 F.2d 304, 311 (7th Cir.) (Holzer) (reaffirming the longstanding interpretation that even if the defendant were “the passive recipient of loans, pressed on him by law yers eager to curry favor with him,” he would still be guilty of extortion because “[e]xtortion ‘under color of official right’ equals the knowing receipt of bribes; they need not be solicited ”) (emphasis added), vacated on other grounds, — U.S. -, 108 S.Ct. 58, 98 L.Ed.2d 18 (1987), aff’d in part on remand, 840 F.2d 1343 (7th Cir. 1988); United States v. Paschall, 772 F.2d 68, 71-73 (4th Cir.1985). The public office was viewed as either a surrogate for inducement or as a perpetual inducement in itself. See id. at 73-74 (“there are circumstances under which the [public] office itself provides the inducement”). Neither Congress nor the Supreme Court has ever seen fit, despite ample opportunity to do so, to overturn the line of authority developed nearly unanimously by the circuits. The rule of" }, { "docid": "11683645", "title": "", "text": "the defendant acted in some manner to “induce” the payment in question. We disagreed and said: Every circuit which has considered whether inducement is an essential element of a section 1951 violation has ruled that is not. See e.g., United States v. Jannotti, 673 F.2d 578, 594-96 (3d Cir.1982) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982); United States v. Butler, 618 F.2d 411, 417-20 (6th Cir.), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980); United States v. Hall, 536 F.2d 313, 320-21 (10th Cir.), cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285 (1976); 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); United States v. Braasch, 505 F.2d 139, 151 n. 8 (7th Cir.1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975). The statute is clearly phrased in the disjunctive: “The term ‘extortion’ means 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.” § 1951(b)(2) (Emphasis supplied). Further, a disjunctive reading comports with the historical development of the crime of extortion. The “under color of official right” language reflects the common law definition of extortion, which could be committed only by a public official’s corrupt taking of a fee under color of his office and did not require proof of threat, fear, or duress * * * * The misuse of public office is said to supply the element of coercion * * * * Threats, fear and duress became express elements only when the crime was later broadened to include actions by private individuals, who had no official power to wield over their victims. Hathaway, 534 F.2d at 393. Thus, we hold that where the defendant is a public official, the government need not show inducement and extortion may be proved by demonstrating nothing more than that the payment in question was obtained “under color of official right.” McClelland, 731" }, { "docid": "121575", "title": "", "text": "256, 74 L.Ed.2d 200 (1982); United States v. Trotta, 525 F.2d at 1100 (“the pressure exerted by Trotta by means of the power of his public office to induce the payment of money is, in itself, the misuse of the office”); United States v. Mazzei, 521 F.2d 639, 643 (3d Cir.) (en banc) (jury could conclude that extortion under color of official right occurred “so long as it found that [the extorted party] held, and defendant exploited, a reasonable belief that ... the power in fact of defendant’s office included ... effective authority”), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975). We recognize that several other courts of appeals have explicitly rejected the notion that proof of inducement is necessary. See, e.g., 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); 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); United States v. Butler, 618 F.2d 411, 417-18 (6th Cir.), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980); United States v. Price, 617 F.2d 455, 458 (7th Cir.1979); United States v. Braasch, 505 F.2d 139, 151 (7th Cir.1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975). However, we do not read those decisions to permit a conviction for extortion under col- or of official right absent evidence that the public official misused his office to obtain the benefits. Certainly the facts of those cases, and of most reported decisions construing extortion under color of official right, establish conduct from which inducement can readily be inferred. See United States v. Jannotti, 673 F.2d at 596 (payment made after “assurances that there would be no obstacles” to construction of hotel project); United States v. Hedman, 630 F.2d at 1188-91 (city building inspectors accepted concealed payoffs in return for nonenforcement of housing code); United States v. Butler, 618 F.2d at 418 (town public works commissioner accepted money from developer in exchange for moving" } ]

[ { "docid": "22267854", "title": "", "text": "(9th Cir.2007) (“Because Booker abolished the mandatory application of the Sentencing Guidelines in all contexts, and because reliance on its holding is not inconsistent with any applicable policy statement, we reverse the district court and hold that Booker applies to § 3582(c)(2) proceedings.”); but see United States v. Hudson, 242 Fed.Appx. 16 (4th Cir.2007), cert. denied — U.S. —, 128 S.Ct. 1282, 170 L.Ed.2d 102 (2008) (concluding, in an unpublished one-paragraph opinion, that the district court did not abuse its discretion nor commit reversible error by concluding that Booker does not apply to § 3582(c)(2) proceedings). .See Johnson v. Quarterman, 479 F.3d 358, 359 (5th Cir.2007) (\"Briefs by pro se litigants are afforded liberal construction....”). . Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656 (1973). . Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976); see also Lassiter v. Dep’t of Soc. Servs. of Durham County, 452 U.S. 18, 25-33, 101 S.Ct. 2153, 2158-63, 68 L.Ed.2d 640 (1981) (discussing applying the Mathews balancing test to a situation in which the question was whether due process required the appointment of an attorney). . Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967). . Coleman v. Thompson, 501 U.S. 722, 755-57, 111 S.Ct. 2546, 2567-68, 115 L.Ed.2d 640 (1991); Pennsylvania v. Finley, 481 U.S. 551, 555-58, 107 S.Ct. 1990, 1993-95, 95 L.Ed.2d 539 (1987). . 55 F.3d 1007 (5th Cir.1995); but see United States v. Alvarez, 210 F.3d 309, 310 (5th Cir.2000) (agreeing with two other circuits that \"a § 3582(c)(2) motion is not a civil postconviction action but a step in a criminal case”) (internal citation and quotation marks omitted). . Whitebird, 55 F.3d at 1011 n. 3. . Id. at 1011. . Id. . USSG § 1B1.10(b), n. 1(B) (Mar.2008 ed.). . See Judicial Council of the Fifth Circuit, Plan for Representation on Appeal Under the Criminal Justice Act, § 3(B)." } ]

[ { "docid": "6562243", "title": "", "text": "PER CURIAM: Defendant-Appellant Andre McDaniels appeals the sentences imposed following his guilty-plea conviction on nine counts of tampering with a witness by corrupt persuasion. The district court sentenced him to 78 months of imprisonment on each count, with those sentences to run concurrently with each other but consecutively to federal sentences that McDaniels was already serving following prior convictions on charges of coercion and enticement. McDaniels argues that the sentences imposed by the district court were substantively unreasonable because the district court did not afford adequate weight to the applicable guidelines range — U.S.S.G. § 5G1.3 in particular — in its balancing of the 18 U.S.C. § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 50-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). He did not object on this basis in the district court, however, so plain error review applies. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.2007). McDaniels does not attempt to show that the alleged error either “affected [his] substantial rights” or “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings,” however, so he cannot establish reversible plain error. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks and citations omitted); see also United States v. Williams, 620 F.3d 483, 496 (5th Cir.2010). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "22337380", "title": "", "text": "until after he was sentenced and after he filed his initial brief. In exceptional circumstances, especially criminal cases, we can, in our discretion, take sua sponte notice of errors not presented in either the district court or the appellant’s initial brief. We exercise this discretion with the greatest prudence, recognizing that it is only the extraordinary case which will excuse an appellant’s failure to make an argument in his initial brief. Like review of errors not preserved through an objection in the district court, we review an error neither argued in the district court nor presented on appeal for plain error. To demonstrate reversible plain error, Broussard must show “(1) error (2) that is plain and (3) that affects his substantial rights.” United States v. Castillo-Estevez, 597 F.3d 238, 240 (5th Cir.2010). “To be ‘plain,’ legal error must be ‘clear or obvious, rather than subject to reasonable dispute.’ ” Id. at 241 (quoting Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009)). To affect the defendant’s substantial rights, the defendant must demonstrate that the error affected the outcome of the district court proceedings. Puckett, 129 S.Ct. at 1429; United States v. Dickson, 632 F.3d 186, 191 (5th Cir.2011) (stating that, in the sentencing context, the defendant must demonstrate a “reasonable probability” that, but for the district court’s error, he would have received a lesser sentence); United States v. Williams, 620 F.3d 483, 496 (5th Cir.2010) (same). Finally, “[w]e will exercise our discretion to correct plain error if it seriously affected the fairness, integrity, or public reputation of the judicial proceeding.” United States v. Murray, 648 F.3d 251, 253 (5th Cir.2011). As detailed above, the district court committed error in relying on Broussard’s rehabilitative needs when it determined the length of his sentence. We now must determine if the district court’s error was clear or plain, an inquiry complicated by the fact that the Supreme Court decided Tapia after Broussard had been sentenced. At the time of his sentencing, this court had never squarely addressed whether it was permissible for a sentencing court to consider" }, { "docid": "22700718", "title": "", "text": "a comparable reduction of his sentence pursuant to U.S.S.G. § 1B1.10(b)(2)(B). He urged the court to consider the still-existing unwarranted disparity between crack and powder cocaine sentences and his ef forts at rehabilitation since his incarceration. The district court denied the sentence reduction, finding that: Having reviewed the Probation Office’s re-calculation of the applicable Guideline range of imprisonment, the responses thereto, and the record in this matter, including the Pre-Sentence Report, the Court finds that the defendant previously received adjustment under a government motion filed pursuant to ... § 3553(e) at which time the Court had determined a total sentence pursuant to ... § 3553(a) factors. Accordingly, the Court will not reduce Defendant’s sentence further. Kirkendoll filed a timely notice of appeal. STANDARD OF REVIEW This court reviews a district court’s decision “whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2) for abuse of discretion, ... its interpretation of the Guidelines de novo, and its findings of fact for clear error.” United States v. Evans, 587 F.3d 667, 672 (5th Cir.2009), cert. denied, — U.S. —, 130 S.Ct. 3462, 177 L.Ed.2d 1064 (2010) (internal citations omitted). “A district court abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence.” United States v. Smith, 417 F.3d 483, 486-87 (5th Cir.2005) (internal quotation marks and footnote omitted). DISCUSSION As noted above, § 3582(c)(2) grants the district court discretion to modify a defendant’s sentence in certain cases where the sentencing range has been subsequently lowered by the Sentencing Commission. United States v. Doublin, 572 F.3d 235, 236-37 (5th Cir.), cert. denied, — U.S. —, 130 S.Ct. 517, 175 L.Ed.2d 366 (2009). The Supreme Court has recently made it clear that, to determine whether to reduce a sentence pursuant to § 3582(c)(2), the district court must conduct a two-step inquiry. Dillon v. United States, — U.S. —, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010). Step one of the inquiry requires the court to follow the instructions in U.S.S.G. § 1B1.10 to determine whether the prisoner is eligible for a sentence" }, { "docid": "22700719", "title": "", "text": "— U.S. —, 130 S.Ct. 3462, 177 L.Ed.2d 1064 (2010) (internal citations omitted). “A district court abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence.” United States v. Smith, 417 F.3d 483, 486-87 (5th Cir.2005) (internal quotation marks and footnote omitted). DISCUSSION As noted above, § 3582(c)(2) grants the district court discretion to modify a defendant’s sentence in certain cases where the sentencing range has been subsequently lowered by the Sentencing Commission. United States v. Doublin, 572 F.3d 235, 236-37 (5th Cir.), cert. denied, — U.S. —, 130 S.Ct. 517, 175 L.Ed.2d 366 (2009). The Supreme Court has recently made it clear that, to determine whether to reduce a sentence pursuant to § 3582(c)(2), the district court must conduct a two-step inquiry. Dillon v. United States, — U.S. —, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010). Step one of the inquiry requires the court to follow the instructions in U.S.S.G. § 1B1.10 to determine whether the prisoner is eligible for a sentence modification and the extent of the reduction authorized. Id. Step two requires the “court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by [§ 1B1.10] is warranted in whole or in part under the particular circumstances of the case.” Id. at 2692 (footnote added). In relevant part, § 1B1.10 requires the court to begin by “determining] the amended guideline range ... applicable to the defendant.” U.S. Sentencing Guidelines Manual § lB1.10(b)(l). It then specifies that the court must impose a sentence equal to or above the low end of the amended range unless the term of imprisonment imposed at sentencing was below the defendant’s original Guidelines range. Id. at § lB1.10(b)(2)(A)-(B). If the defendant originally received a below-Guidelines sentence, in response to a § 3582(c)(2) motion, the court may grant a comparable reduction: “a reduction comparably less than the amended guideline range.” Id. at § lB1.10(b)(2)(B); see also Dillon, 130 S.Ct. at 2691-92. In the cases on appeal, because the defendants’ original sentences were lower than their" }, { "docid": "22053223", "title": "", "text": "defendant’s sentence under § 3582(c)(2). Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2691-92, 177 L.Ed.2d 271 (2010). The court first considers whether the sentence modification is authorized. Id. at 2691. A sentence modification is authorized if it “is consistent with applicable policy statements issued by the Sentencing Commission — namely, § 1B1.10” of the United States Sentencing Guidelines Manual (U.S.S.G.). Id. at 2691 (citation and internal marks omitted). Only if the court determines that a sentence modification is authorized must the court consider whether such modification is warranted. Id. To determine whether the authorized modification is warranted, the court must consider the applicable § 3553(a) factors and “the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment.” United States v. Robinson, 542 F.3d 1045, 1049, 1052 (5th Cir.2008) (quoting U.S.S.G. § 1B1.10 cmt. n. 1(B) (2008)); see Dillon, 130 S.Ct. at 2692. The court may also “consider post-sentencing conduct of the defendant that occurred after imposition of the original term of imprisonment.” Robinson, 542 F.3d at 1052 (quoting U.S.S.G. § 1B1.10 cmt. n. 1(B)). In this case, the district court implicitly found and the parties agree that a sentence modification was authorized under § 3582(c)(2). See U.S.S.G. § 1B1.10(b)(2)(B); United States v. Cooley, 590 F.3d 293, 297 (5th Cir.2009). Although authorized, the district court decided on its own motion and without briefing or argument that a further reduction in Larry’s sentence was not warranted. On appeal, Larry correctly recognizes that the district court has the discretion to deny sentence modification. See Evans, 587 F.3d at 673. Larry argues however that the district court abused that discretion by denying the modification without first considering the § 3553(a) factors. There is no indication in the record that the district court considered the factors when it determined whether the modification was warranted. The district court did not state that it considered the factors or explain how the factors supported its finding that sentence modification was not warranted. Moreover, it did not consider argument concerning" }, { "docid": "20278123", "title": "", "text": "the FSA, such that he is entitled to the benefit of Dorsey. We disagree. Dorsey expressly acknowledged that defendants who committed a crime addressed in the FSA but who were sentenced before the FSA’s effective date will be subject to a different result than those who committed the same crime on the same date but were sentenced afterwards. Id. (“We consequently conclude that this particular new disparity (between those pre-Act offenders already sentenced and those not yet sentenced as of August 3[, 2010]) cannot make a critical difference.”). The Sixth Circuit recently addressed a virtually identical factual scenario to that of Kelly and held: “[W]e ... have confirmed, even in light of Dorsey, that the FSA is not retroactive to defendants like Hammond whose sentences were modified after the effective date of the FSA but who were originally sentenced before its effective date.” United States v. Hammond, 712 F.3d 333, 336 (6th Cir.2013). The Ninth Circuit also examined a virtually identical factual scenario and agreed “with [its] sister circuits” that had “rejected the argument that Dorsey requires retroactive application of the FSA’s mandatory minimums to those sentenced before the Act’s passage.” United States v. Augustine, 712 F.3d 1290 (9th Cir.2013) (collecting cases). Nothing in Dorsey purports to change Supreme Court and Fifth Circuit precedent that § 3582(c)(2) hearings are not plenary re-sentencings. See Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010) (emphasizing limited nature of § 3582(c)(2) proceedings); United States v. Garcia, 655 F.3d 426, 430-31 (5th Cir.2011), cert. de nied, — U.S. -, 132 S.Ct. 1124, 181 L.Ed.2d 1002 (2012) (same). We thus join our sister circuits in declining to treat a § 3582(c)(2) modification hearing as the equivalent of an original sentencing hearing under Dorsey. See United States v. Meneweather, — Fed.Appx. -, 2013 WL 1277102 (5th Cir.2013) (unpublished) (rejecting defendant’s argument under Dorsey and holding that pre-FSA mandatory minimum applies); United States v. Stone, 473 Fed.Appx. 393, 394 (5th Cir.2012) (unpublished) (same); accord United States v. Speed, — Fed.Appx.-, 2013 WL 1222761 (7th Cir.2013) (unpublished); United States v. Pratt, 515" }, { "docid": "20278124", "title": "", "text": "Dorsey requires retroactive application of the FSA’s mandatory minimums to those sentenced before the Act’s passage.” United States v. Augustine, 712 F.3d 1290 (9th Cir.2013) (collecting cases). Nothing in Dorsey purports to change Supreme Court and Fifth Circuit precedent that § 3582(c)(2) hearings are not plenary re-sentencings. See Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010) (emphasizing limited nature of § 3582(c)(2) proceedings); United States v. Garcia, 655 F.3d 426, 430-31 (5th Cir.2011), cert. de nied, — U.S. -, 132 S.Ct. 1124, 181 L.Ed.2d 1002 (2012) (same). We thus join our sister circuits in declining to treat a § 3582(c)(2) modification hearing as the equivalent of an original sentencing hearing under Dorsey. See United States v. Meneweather, — Fed.Appx. -, 2013 WL 1277102 (5th Cir.2013) (unpublished) (rejecting defendant’s argument under Dorsey and holding that pre-FSA mandatory minimum applies); United States v. Stone, 473 Fed.Appx. 393, 394 (5th Cir.2012) (unpublished) (same); accord United States v. Speed, — Fed.Appx.-, 2013 WL 1222761 (7th Cir.2013) (unpublished); United States v. Pratt, 515 Fed.Appx. 90, 2013 WL 864464 (3d Cir.2013) (unpublished); United States v. Snow, 509 Fed. Appx. 808, 809, 2013 WL 440719, at *2 (10th Cir.2013) (unpublished) (“The exception outlined in Dorsey applies to post-FSA sentences rather than post-FSA sentence reductions.”); United States v. Berry, 701 F.3d 374, 378 (11th Cir.2012) (“The Supreme Court in Dorsey carefully confined its application of the FSA to pre-Act offenders who were sentenced after the Act’s effective date.”). AFFIRMED. . Just like Kelly, in both Hammond and Augustine, the defendant had originally been sentenced before the FSA’s enactment and received a reduction to the pre-FSA mandatory minimum of 120 months after the FSA’s enactment. Hammond, 712 F.3d at 335; Augustine, 712 F.3d at 1292. . We cite these unpublished cases for their procedural similarity and persuasiveness." }, { "docid": "22053222", "title": "", "text": "reduce Larry’s sentence, stating simply that Larry “ha[d] been given sufficient credit for cooperation” and that “the previously imposed sentence is still sharply below the amended guideline range.” The next day the district court entered a notation on the docket sheet indicating that it had made the motion and docketed the order denying all relief. Larry timely appealed. II. We review a district court’s order sua sponte denying a defendant relief under § 3582(c)(2) for abuse of discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir.2009). A court abuses its discretion when the court makes an error of law or “bases its decision on a clearly erroneous assessment of the evidence.” United States v. Lipscomb, 299 F.3d 303, 338-39 (5th Cir.2002) (citation and internal marks omitted). When a court in applying its discretion fails to consider the factors as required by law, it also abuses its discretion. See United States v. Garza, 593 F.3d 385, 388 (5th Cir.2010). The Supreme Court developed a two-step test for determining whether a court should reduce a defendant’s sentence under § 3582(c)(2). Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2691-92, 177 L.Ed.2d 271 (2010). The court first considers whether the sentence modification is authorized. Id. at 2691. A sentence modification is authorized if it “is consistent with applicable policy statements issued by the Sentencing Commission — namely, § 1B1.10” of the United States Sentencing Guidelines Manual (U.S.S.G.). Id. at 2691 (citation and internal marks omitted). Only if the court determines that a sentence modification is authorized must the court consider whether such modification is warranted. Id. To determine whether the authorized modification is warranted, the court must consider the applicable § 3553(a) factors and “the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment.” United States v. Robinson, 542 F.3d 1045, 1049, 1052 (5th Cir.2008) (quoting U.S.S.G. § 1B1.10 cmt. n. 1(B) (2008)); see Dillon, 130 S.Ct. at 2692. The court may also “consider post-sentencing conduct of the defendant that occurred after imposition" }, { "docid": "12682150", "title": "", "text": "similarity here — Andino-Ortega’s counsel acknowledged that the 16-level enhancement was proper — he did so on the basis of a misunderstanding of this court’s precedent. The statements regarding the propriety of the crime-of-violence enhancement do not constitute a waiver because they do not evidence an intentional and knowing relinquishment of a right. Counsel’s failure to object below because he did not recognize the argument now being made on appeal is not a waiver. See United States v. Castaneda-Baltazar, 239 Fed.Appx. 900, 901 (5th Cir.2007) (unpub lished); see also United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir.2006) (finding no waiver of sentencing guidelines issue even though defense counsel stated that “other than the Blakely objection, he had no problem with the PSR”). Accordingly, we review for plain error. Ill Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), this court reviews sentences for reasonableness in light of the factors in 18 U.S.C. § 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.2005). Pursuant to Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the court determines whether the sentence is procedurally sound and whether it is substantively reasonable. This court reviews a district court’s interpretation of the guidelines de novo and its factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008). Because Andino-Ortega did not object below, he must establish that the district court plainly erred in applying the guidelines. Arviso-Mata, 442 F.3d at 384. Under plain error, the appellant must show an error, that is clear or obvious, and that affected his substantial rights. See Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009); United States v. Villegas, 404 F.3d 355, 358 (5th Cir.2005). If these requirements are met, this court may remedy the error if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett, 129 S.Ct. at 1429 (quotation omitted) (alteration in original). A The Guidelines provide for a 16-level increase in a defendant’s base offense" }, { "docid": "23079332", "title": "", "text": "(6th Cir.2009). Under section 3582(c)(2), a district court may modify a term of imprisonment: in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o) ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The Supreme Court has held that section 3582(c) establishes a two-step inquiry. See Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010). At step one of the inquiry, the court must determine the defendant’s eligibility for a sentence modification under the Sentencing Commission’s policy statements and the extent of reduction authorized. Id. The Sentencing Commission has identified the amendments that may apply retroactively and the procedure for deciding a motion for reduction of sentence in a policy statement. See U.S.S.G. § 1B1.10. Both Amendment 505 and Amendment 706 are included in the collection of retroactive amendments listed in section lB1.10(c) that may be considered as a basis for sentence reduction. The court must “determine the amended guideline range that would have been applicable to the defendant” if the relevant amendment had been in effect at the time of the initial sentencing. Id. § lB1.10(b)(l). We review de novo a district court’s determination that a defendant is ineligible for a sentence reduction. See United States v. Curry, 606 F.3d 323, 327 (6th Cir.2010). If a defendant is eligible for a sentence reduction, then under step two of the inquiry the court must consider the section 3553(a) factors and determine whether, in its discretion, the authorized reduction is warranted under the circumstances. See Dillon, 130 S.Ct. at 2692. A district court’s decision whether a sentence reduction is warranted is reviewed for abuse of discretion. See United States v. Washington, 584 F.3d 693, 695 (6th Cir.2009), cert. denied, —— U.S. -, 130 S.Ct. 3479, 177 L.Ed.2d 1058 (2010). A district court abuses its" }, { "docid": "22700721", "title": "", "text": "original Guidelines ranges, it was within the district courts’ discretion to grant them each a comparable reduction. Dillon, 130 S.Ct. at 2691-92. The district courts were also free to determine that no further reduction was warranted. United States v. Smith, 595 F.3d 1322, 1323 (5th Cir.2010) (holding that “[t]here is simply no basis” to make mandatory a sentencing reduction under § 3582(c)(2)). The defendants nevertheless request that we reverse the district courts’ denial of their motions because, they argue, the record in each case shows that the district court did not properly perform step two of the analysis. They argue that the courts misapprehended and failed to fulfill their duty to reconsider the § 3553(a) factors in connection with the § 3582(c)(2) motions. The defendants submit that this failure was particularly harmful to them because they each raised new arguments regarding the application of the § 3553(a) factors in them motions. In response to a § 3582(c)(2) motion, the district court must conduct a contemporaneous review of the § 3553(a) factors. United States v. Evans, 587 F.3d 667, 673 (5th Cir.2009). However, a sentencing court is not required to explain its application of those factors or its reasons for denying the motion. Id. “[T]hat the court did not mention the § 3553(a) factors ... does not mean that it did not consider them.” Id. A court satisfies its obligation to review the § 3553(a) factors if it can be determined from the record that it “gave due consideration to the motion as a whole, and implicitly to the factors set forth in § 3553(a).” United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir.1995). Further, when a “court had those arguments in front of it when it made its determination .... we can assume that it considered them.” Evans, 587 F.3d at 673 (quotation marks and citation omitted). These consolidated cases present the court with a unique question. Although we normally assume that a district court has reconsidered the § 3553(a) factors when it is faced with § 3553(a) arguments, these defendants raise the issue of whether we continue to" }, { "docid": "6549229", "title": "", "text": "jurists could debate the district court’s disposition of his motion to reconsider judgment. We DENY the request for a stay of execution. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . Buck v. Thaler, 345 Fed.Appx. 923 (5th Cir.2009). . Buck v. Thaler, No. 72, 810 (Tex.Crim.App. Apr. 28, 1999). . Buck, 345 Fed.Appx. 923. . Id. . 545 U.S. 524, 530-31, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). .See id. at 530, 125 S.Ct. 2641. . 28 U.S.C. § 2244(b)(3)(A). . Id. § 2244(b)(2). . Id. § 2244(b)(2)(B)(i). . Id. § 2244(b)(2)(B)(ii) . 28 U.S.C. § 2244(a)-(b)(2). . Id. . Gonzalez, 545 U.S. at 532, 125 S.Ct. 2641. . 28 U.S.C. § 2253(c)(1). . 302 F.3d 491, 492 (5th Cir.2002). . Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir.2007); see also Williams v. Quarterman, 293 Fed.Appx. 298, 315 (5th Cir.2008). . Jackson v. Thaler, 348 Fed.Appx. 29, 31-32, 34-35 (5th Cir.2009). . 28 U.S.C. § 2253(c)(2). . Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). . Id. at 336, 123 S.Ct. 1029. . Id. at 360, 123 S.Ct. 1029. . Fed.R.Civ.P. 60(b)(6). . Fed.R.Civ.P. 60(c)(1). . See In re Osborne, 379 F.3d 277, 283 (5th Cir.2004) (\"Motions under Rule 60(b) must be made ‘within a reasonable time,' unless good cause can be shown for the delay.” (citing Pryor v. U.S. Postal Serv., 769 F.2d 281, 287-88 (5th Cir.1985))). . Balentine v. Thaler, 626 F.3d 842, 846 (5th Cir.2010), cert. denied, - U.S. -, 131 S.Ct. 2992, 180 L.Ed.2d 824 (2011). . Lindy Investments III v. Shakertown 1992 Inc., 360 Fed.Appx. 510, 512 (5th Cir.2010); see also Matter of Al Copeland Enterprises, Inc., 153 F.3d 268, 271-72 (5th Cir.1998). . See Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) (explaining that \"our cases have required a mov-ant seeking relief under Rule 60(b)(6) to show 'extraordinary circumstances' justifying the re-opening of a" }, { "docid": "22068244", "title": "", "text": "decisions unaffected.” U.S.S.G. § lB1.10(b)(l). After the district court determines what the modified sentence would be, the district court is required to consider any applicable factors under 18 U.S.C. § 3553 in deciding whether a sentence modification is “warranted in whole or in part under the particular circumstances of the case.” Dillon, 130 S.Ct. at 2692. “Because reference to § 3553 is appropriate only at the second step of this circumscribed inquiry, it cannot serve to transform the proceedings under § 3582(c)(2) into plenary resentencing proceedings.” Id. Thus, even if the defendant qualifies for sentence modification under the first step of the analysis, the decision whether to ultimately grant a modification is left to the sound discretion of the trial court. Dillon, 130 S.Ct. at 2692. The district court’s decision whether to reduce a sentence pursuant to § 3582(c)(2) is reviewed for abuse of discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir.2009) cert. denied, — U.S.-, 130 S.Ct. 3462, 177 L.Ed.2d 1064 (2010). Applying those principles to this appeal, we hold that the district court did not abuse its discretion in refusing to modify Hernandez’s sentence or in refusing to grant an evidentiary hearing to decide the amount of crack for which Hernandez was responsible. On the record before us the sentencing district judge adopted the 32.5 kilogram quantity found by the PSR, far beyond the 4.5 kg threshold needed for the highest offense level. Hernandez did not challenge that finding on appeal, as did one of his co-conspirators, James Dwayne Ortega. Thus, Hernandez’s efforts to re-litigate whether the penalty was properly applied are not cognizable at this stage, and his sentence cannot be modified. See United States v. Shaw, 30 F.3d 26, 29 (5th Cir.1994) (observing that a § 3582(c)(2) proceeding is not the appropriate vehicle for relitigating a sentencing issue); see also United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir.1995) (“[A] § 3582(c)(2) motion is not a second opportunity to present mitigating factors to the sentencing judge, nor is it a challenge to the appropriateness of the original sentence.”). A modification proceeding is" }, { "docid": "22068243", "title": "", "text": "imprisonment once it has been imposed.” Id. However, Congress has allowed an exception to that rule “in the case of a defendant who 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); see also Freeman v. United States, No. 09-10245, — U.S.-, 131 S.Ct. 2685, 180 L.Ed.2d 519, 2011 WL 2472797 (U.S. June 23, 2011) (reciting standard for sentence modifications). Such defendants are entitled to move for retroactive modification of their sentences. Dillon, 130 S.Ct. at 2690-91. In determining whether to modify the defendant’s sentence, the district court is first required to find the amended guideline range that would have been applicable to the defendant if the relevant amendment had been in effect at the time of the initial sentencing. U.S.S.G. § lB1.10(a)(l). “In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guidelines provisions that were applied when the defendant was sentenced, and shall leave all other guideline application decisions unaffected.” U.S.S.G. § lB1.10(b)(l). After the district court determines what the modified sentence would be, the district court is required to consider any applicable factors under 18 U.S.C. § 3553 in deciding whether a sentence modification is “warranted in whole or in part under the particular circumstances of the case.” Dillon, 130 S.Ct. at 2692. “Because reference to § 3553 is appropriate only at the second step of this circumscribed inquiry, it cannot serve to transform the proceedings under § 3582(c)(2) into plenary resentencing proceedings.” Id. Thus, even if the defendant qualifies for sentence modification under the first step of the analysis, the decision whether to ultimately grant a modification is left to the sound discretion of the trial court. Dillon, 130 S.Ct. at 2692. The district court’s decision whether to reduce a sentence pursuant to § 3582(c)(2) is reviewed for abuse of discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir.2009) cert. denied, — U.S.-, 130 S.Ct. 3462, 177 L.Ed.2d 1064 (2010). Applying those principles to this appeal, we hold that" }, { "docid": "22816896", "title": "", "text": "guideline range was used in determining the agreed-on sentence.” The Government argues that the district court did not abuse its discretion in denying Benitez’s § 3582(c)(2) motion. The Government contends that Benitez pleaded guilty pursuant to a Rule 11(c)(1)(C) agreement which “did not state, or even imply, that the agreed-upon sentence was to be calculated under a sentencing guideline range.” The Government asserts that because Benitez’s stipulated sentence of 63 months was not tied to a guidelines range, Benitez is not entitled to a sentence reduction under Amendment 782. Section 3582(c)(2) provides that a defendant’s sentence may be modified if he was “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”' § 3582(c)(2); see United States v. Doublin, 572 F.3d 235, 237 (2009). Section 3582(c)(2) applies only to retroactive guidelines amendments as set forth in § lB1.10(a). See Dillon v. United States, 560 U.S. 817, 826, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Amendment 782 applies retroactively. See § lB1.10(d). The Supreme Court has prescribed a two-step inquiry for a district court that is considering a § 3582(c)(2) motion. Dillon, 560 U.S. at 826, 130 S.Ct. 2683. The district court must first determine whether the defendant is eligible for a sentence reduction under § 1B1.10 and then may proceed to consider whether a reduction is warranted in whole or in part under 18 U.S.C. § 3553(a)’s sentencing factors. Dillon, 560 U.S. at 826-27, 130 S.Ct. 2683. However, a defendant is not eligible for a reduction under § 3582(c)(2) if a qualifying amendment “does not have the effect of lowering the defendant’s applicable guideline range.” § lB1.10(a)(2)(B); see also § ÍB1.10, cmt. n. 1(A). This court reviews a district court’s decision “whether to reduce a sentence pursuant to ... § 3582(c)(2) for abuse of discretion, ... its interpretation of the Guidelines de novo, and its findings of fact for clear error.” United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (internal quotation marks and citation omitted). “A court abuses its discretion when the court makes an error of" }, { "docid": "22199992", "title": "", "text": "appeals, contending that (1) the district court should have appointed counsel to assist Townsend with the motion; and (2) the district court erred in denying the motion and failing to hold an evidentiary hearing. II Because the decision whether to reduce a sentence under § 3582 is within the discretion of the district court judge, United States v. Cueto, 9 F.3d 1438, 1440 (9th Cir.1993), we review the denial of a § 3582 motion for abuse of discretion, United States v. Whitebird, 55 F.3d 1007, 1009 (5th Cir.1995). Whether a defendant was denied his Sixth Amendment right to counsel is a question of law reviewed de novo. Frazer v. United States, 18 F.3d 778, 781 (9th Cir.1994) (citations omitted). Ill Townsend contends that the district court should have appointed counsel to assist him with his § 3582(c)(2) motion. We disagree. A Townsend refers us to the rule that a defendant is entitled to appointed counsel if an evidentiary hearing is required in relation to a 28 U.S.C. § 2255 proceeding. Rule 8(c) of the Rules Governing Section 2255 Proceedings in the United States District Courts, 28 U.S.C. foil. § 2255; see also United States v. Duarte-Higareda, 68 F.3d 369, 370 (9th Cir.1995) (noting that “[a]ll of the circuits that have discussed the issue agree that [Rule 8(c) ] makes the appointment of counsel mandatory when evidentiary hearings are required”). The rules governing § 2255 are not applicable to Townsend, however. Townsend did not, and could not, bring his motion under § 2255. Hamilton v. United States, 67 F.3d 761, 764 (9th Cir.1995). In addition, and as an alternative holding, even if Rule 8(c) were applicable, it would not support Townsend’s argument. Rule 8(c) provides for counsel only where an evidentiary hearing is required and, as we explain below, no such hearing was required in this case. B Construed liberally, Townsend’s brief may also be read as arguing that he has a right to counsel under the Sixth Amendment. Whether a defendant has a Sixth Amendment right to counsel when bringing a § 3582(e) motion is a question of first impression" }, { "docid": "23086638", "title": "", "text": "Hear Constitutional Challenges in § 3582(c)(2) Proceedings We review de novo the scope of a district court’s authority to resentence a defendant in a § 3582(c)(2) proceeding. United States v. Williams, 575 F.3d 1075, 1076 (10th Cir.2009). Nowhere does Gay tie his constitutional challenges to his motion for a sentence reduction under § 3582(c)(2), the matter heard in the district court and supposedly supplying a basis for this appeal. Instead, as noted above, he complains that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), has not been applied retroactively and that as a result, his sentence continues to reflect the 100:1 sentencing disparity existing at his 1998 sentencing. At the same time, he acknowledges that the Supreme Court itself has recently stated that Booker is not applicable retroactively. See Dillon v. United States, 560 U.S. 817, 828, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (reviewing an appeal from a § 3582(c)(2) proceeding, the Court rejected an argument that, under Booker, the district court should have resentenced the defendant under the advisory guidelines and adjusted his criminal history category). Moreover, Gay can hardly deny that the district court would have been quite willing to give him the benefit of Amendment 750’s 18:1 ratio had it in fact served to lower his sentencing range. Gay’s challenge amounts to a collateral attack on his sentence, seeking relief beyond that allowed in a § 3582(c)(2) proceeding. See United States v. Price, 438 F.3d 1005, 1006-07 (10th Cir.2006) (finding no authority to consider Booker relief in a § 3582(c)(2) proceeding after noting that courts may modify a defendant’s sentence only when Congress has expressly given jurisdiction to do so); United States v. Smartt, 129 F.3d 539, 542-43 (10th Cir.1997) (finding no jurisdiction in a § 3582(c)(2) appeal to consider the effect of counsel’s failure to request safety-valve relief, because this relief should be addressed in a 28 U.S.C. § 2255 motion). Nothing in the limited congressional grant of authority to modify sentences provided by § 3582(c)(2) allows Gay to challenge the constitutionality of his sentence. He must do so" }, { "docid": "22316765", "title": "", "text": "cert. denied, — U.S. -, 120 S.Ct. 535, 145 L.Ed.2d 415 (1999); United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir.1995). However, Legree asserts that considerations of fundamental fairness required a hearing and appointment of counsel in the present case because there was no incentive to develop mitigating factors at the original sentencing hearing. It is well settled that “a criminal defendant has no right to counsel beyond his first appeal.” Coleman v. Thompson, 501 U.S. 722, 756, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Though in some exceptional cases due process does mandate the appointment of counsel for certain postconviction proceedings, see Gagnon v. Searpelli, 411 U.S. 778, 788, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), Legree’s motion for reduction of sentence does not fit into this category. A motion pursuant to § 3582(c) “is not a do-over of an original sentencing proceeding where a defendant is cloaked in rights mandated by statutory law and the Constitution.” Tidwell, 178 F.3d at 949. Furthermore, a judge need not hold a hearing when considering a § 3582(c) motion. Id. An amendment to the Federal Rules of Criminal Procedure, enacted in 1998 while Legree’s appeal was pending, now makes this abundantly clear. According to Rule 43(c)(4), a defendant’s presence is not required “when the proceeding involves a reduction or correction of sentence under ... 18 U.S.C. § 3582(c).” Legree contends that the motion for reduction of sentence was in essence his first opportunity to present mitigating factors. Upon review of the record, we reject this assertion. At the original sentencing Legree’s attorney beseeched the court to award something less than life in prison and called to the court’s attention Legree’s military service, employment history, and the fact no drugs were found in his home. The presentence report also described Legree’s personal history and contained mitigating information. Legree does not allege ineffective assistance of counsel or irregularities in the sentencing process, and he points to no mitigating evidence which was not before the sentencing court. Considering the mitigating factors presented at the original sentencing hearing and the district court’s familiarity with Legree" }, { "docid": "22036131", "title": "", "text": "the United States Sentencing Commission lowered the Guidelines ranges for cocaine base offenses, see U.S.S.G. app. C, amend. 750; id. amend. 759, Long moved pro se for a sentence reduction under 18 U.S.C. § 3582(c)(2). The probation office supplied the district court with an inaccurate retroactive sentencing worksheet, which— ignoring the binding plea agreement, see Fed.R.Crim.P. 11(c)(1)(C) — reported Long was responsible for 45.5 grams of cocaine base and had been sentenced as a career offender. The district court adopted these inaccuracies and added one of its own, declaring Long’s plea agreement was governed by Rule “11(c)(1)(B) ” (non-binding on the court), rather than Rule 11(c)(1)(C) (binding on the court). (Emphasis added). Believing Long’s Guidelines range “would remain unchanged” because he was sentenced as a career offender, the district court denied Long a sentence reduction. Now represented by experienced counsel, Long appeals. II. DISCUSSION Despite the district court’s misconceptions about the basis for Long’s sentence, we cannot reverse because Long is ineligible for a sentence reduction. See United States v. Scurlark, 560 F.3d 839, 841 (8th Cir.2009) (reviewing de novo the “legal conclusion” whether 18 U.S.C. § 3582(c)(2) authorizes a modification); ef., e.g., United States v. Anderson, 707 F.3d 973, 974 (8th Cir.2013) (per curiam) (reviewing the discretionary decision whether to grant an authorized § 3582(c)(2) modification “for an abuse of discretion”). Two Johnson cases control this case. First, based on United States v. Willie Johnson, 703 F.3d 464 (8th Cir. 2013), we reject Long’s contention that he “should have been entitled [to] and received a sentence reduction ... pursuant to the recent changes in the crack cocaine guidelines.” In that case, we squarely held § 3582(c)(2) does not entitle any defendant to a reduced sentence. See Willie Johnson, 703 F.3d at 469-71. “Far from creating a substantive right to a modification, ‘ § 3582(c)(2) represents a congressional act of lenity.’ ” Id. at 469 (quoting Dillon v. United States, 560 U.S. 817, 828, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010)). Because “the language in § 3582(c)(2) is doubly discretionary,” Long would not be entitled to a sentence reduction" }, { "docid": "10202294", "title": "", "text": "Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. To the extent that Mitchell’s Rule 59(e) motion to alter or amend the judgment sought to undo the district court’s denial of habeas relief on the merits, it was an unauthorized successive petition that the district court lacked jurisdiction to entertain. See Gonzalez v. Crosby, 545 U.S. 524, 532 & n.4, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); Williams v. Thaler, 602 F.3d 291, 312 (5th Cir. 2010); Crone v. Cockrell, 324 F.3d 833, 836-38 (5th Cir. 2003). To the extent that the Rule 59(e) motion challenged the denial of Mitchell’s due process claim as procedurally defaulted, it was not a successive § 2254 petition, but Mitchell needs a COA to proceed on appeal. See § 2253(c)(1)(B); see also Gonzalez, 545 U.S. at 532 & n.4, 125 S.Ct. 2641; Cardenas v. Thaler, 651 F.3d 442, 443 (5th Cir. 2011). Because we discern no legal points arguable on their merits regarding this aspect of the Rule 59(e) ruling, the attempt to appeal that issue is frivolous, see Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983), and reasonable jurists could not debate whether it is adequate to- deserve encouragement to proceed further, see Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. With respect to these postjudgment rulings, we DISMISS this matter for lack of jurisdiction as remand would be futile. See Alvarez, 210 F.3d at 310. We deny Mitchell’s request for appointment of counsel. See Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985). COA -DENIED IN PART AND DISMISSED IN PART. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." } ]

[ { "docid": "7992904", "title": "", "text": "166(a). Congress could have been content to kick-start the PSD program by mandating EPA’s promulgation of initial PSD regulations, but then have left to the agency’s discretion the responsibility for making whatever revisions to those regulations might be warranted when the corresponding NAAQS were revised. In the end, we don’t have to decide which of these conflicting interpretations of § 166(a) is correct, because our cases have adopted what amounts to a clear statement rule in this context. When a plaintiff sues the EPA Administrator for failure “to perform any act or duty under this chapter which is not discretionary with the Administrator,” 42 U.S.C. § 7604(a)(2), we have held that the nondiscretionary nature of the duty must be clear-cut — that is, readily ascertainable from the statute allegedly giving rise to the duty. Our Children’s Earth Found. v. EPA 527 F.3d 842, 851 (9th Cir.2008) (interpreting the Clean Water Act’s similar citizen-suit provision); see also Farmers Union Cent. Exch., Inc. v. Thomas, 881 F.2d 757, 760 (9th Cir.1989). We must be able to identify a “specific, unequivocal command” from the text of the statute at issue using traditional tools of statutory interpretation; it’s not enough that such a command could be teased out “from an amalgamation of disputed statutory provisions and legislative history coupled with the EPA’s own earlier interpretation.” Our Children’s Earth, 527 F.3d at 851 (internal quotation marks omitted). Given § 166(a)’s ambiguity, we cannot say that the existence of a nondiscretionary duty to promulgate revised PSD regulations for ozone is clear-cut or readily ascertainable' from the statute. That is enough to preclude plaintiffs’ reliance on § 7604(a)(2) as the jurisdictional basis for their suit. The district court therefore correctly dismissed plaintiffs’ claim under the Clean' Air Act’s citizen-suit provision for lack of subject matter jurisdiction. AFFIRMED." } ]

[ { "docid": "2376656", "title": "", "text": "FCC (TRAC) this court “may well have exclusive jurisdiction over the merits of this case.” II. District Court Jurisdiction In TRAC, we acknowledged that our “somewhat inconsistent” decisions had left the law in a “state of disarray” concerning “whether a petition to compel allegedly unreasonably delayed agency action properly lies before this Court or before a United States District Court, or whether those courts have concurrent jurisdiction, when any final agency decision in the matter would be directly reviewable in this Court.” In resolving this question, we held that “where a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court’s future jurisdiction is subject to the exclusive review of the Court of Appeals.” Under section 307(b)(1) of the Act, it is clear that this court will have jurisdiction to review the strip mine rulemaking when it becomes final. If that were the only relevant provision, TRAC would clearly apply in this case, but in fact the question of where jurisdiction lies is not so easily resolved. For unlike the statute involved in TRAC, and unlike most regulatory statutes with which we are familiar, the Act itself establishes, in section 304, a role for the district court in reviewing agency action. This “citizen suits” provision states, in relevant part, that: any person may commence a civil action on his own behalf — against the [EPA] Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator____ The district courts shall have jurisdiction ... to order the Administrator to perform such act or duty. Act § 304(a)(2). In three cases decided in 1975, we determined that this “citizen suits” provision grants independent jurisdiction to the district court over claims alleging that EPA has failed to perform a “nondiscretionary” duty. One of these cases, NRDC v. Train, warrants extended discussion here. In that case, we address NRDC’s claim that, by failing to promulgate enforcement guidelines for Group I sources, which the statute had enumerated for regulation," }, { "docid": "7992896", "title": "", "text": "OPINION WATFORD, Circuit Judge: Plaintiffs WildEarth Guardians, Midwest Environmental Defense Center, and Sierra Club are organizations dedicated to environmental conservation. They believe the Environmental Protection Agency (EPA) has been derelict in its duty to protect the nation’s air from ground-level ozone pollution. They sued the EPA’s Administrator in federal district court, seeking an order that would force the Administrator to issue revised regulations governing ozone pollution. Plaintiffs invoked the Clean Air Act’s citizen-suit provision, 42 U.S.C. § 7604, as the sole basis for subject matter jurisdiction. That provision authorizes suits against the Administrator, but only for actions “where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.” § 7604(a)(2) (emphasis added). Plaintiffs contend the Administrator has a nondiscretionary duty to issue revised ozone regulations under § 166(a) of the Clean Air Act, 42 U.S.C. § 7476(a). The district court held that the statute permits, but does not require, the Administrator to issue such regulations and therefore dismissed plaintiffs’ claim for lack of subject matter jurisdiction. To facilitate immediate appeal, the court granted plaintiffs’ request to enter final judgment on that claim under Federal Rule of Civil Procedure 54(b). The only issue on appeal is whether plaintiffs have adequately alleged the violation of a nondiscretionary duty. Before We discuss the parties’ competing interpretations of § 166(a), a brief summary of the relevant regulatory scheme is necessary. When Congress enacted the Clean Air Act Amendments of 1970, it required EPA to identify pollutants that “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7408(a)(1)(A). For each such pollutant, Congress required EPA to issue national ambient air quality standards (NAAQS). § 7409(a)(1)(A). To oversimplify a bit, NAAQS set limits on the permissible concentrations of regulated pollutants in the ambient air. In 1971, EPA issued NAAQS for six pollutants: particulate matter, sulfur dioxide, photochemical oxidants, hydrocarbons, carbon monoxide, and nitrogen dioxide. 36 Fed.Reg. 8186, 8186 (Apr. 30, 1971). The term “photochemical oxidants” includes ozone, and in 1979 EPA" }, { "docid": "6342585", "title": "", "text": "In re Sealed Case, 237 F.3d 657, 667 (D.C.Cir.2001) (quoting Christensen v. Harris County, 529 U.S. 576, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000)). A. Does 42 U.S.C. § 7604(a)(2) Vest Subject Matter Jurisdiction in this Court? The plaintiffs’ argue that this Court has subject matter jurisdiction over this action pursuant to 42 U.S.C. § 7604(a)(2). Compl. ¶ 4. This provision states that “any person may commence a civil action on his own behalf ... against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary ...42 U.S.C. § 7604(a)(2). The defendant raises two arguments in support of his contention that this Court does not have subject matter jurisdiction over the plaintiffs’ claims under this statutory provision of the Clean Air Act. First, the defendant argues that an alleged failure to perform a duty prescribed in a regulation, as opposed to the statute itself, does not fall within the scope of the phrase, “duty under this chapter,” and therefore this action cannot be maintained under 42 U.S.C. § 7604(a)(2), and second, any duty the Administrator has under the regulation was discretionary, not mandatory. Def.’s Mem. at 7-11. The Court will address each argument in turn, beginning with the latter. (1) Does 40 C.F.R. § 80.1045 Create a Mandatory Duty? Pursuant to the plain language of the Clean Air Act, a person may only bring an action in this Court to compel the Administrator to perform a duty that is “not discretionary.” 42 U.S.C. § 7604(a)(2). Accordingly, the Court first must determine whether the duty established in 40 C.F.R. § 80.1045 is a mandatory duty or a duty that was merely discretionary. If the duty is discretionary, the statute does not vest subject matter jurisdiction in this Court, since only nondiscretionary duties vest such jurisdiction. This questions calls for an interpretation of the intent of the regulation, which is readily discernible from the language of the regulation itself. As already noted, the regulation at issue states: § 80.1045 What additional rulemaking will EPA conduct? No later than" }, { "docid": "19363120", "title": "", "text": "from commencing an enforcement action. The possibility that we might affirm the district court’s order keeps EPA’s interest alive. See Williams v. INS, 795 F.2d 738, 741-42 (9th Cir.1986). B. Nondiscretionary Duty The Clean Air Act establishes a bifurcated system for judicial review of agency action. Under the “citizen suits” provision, any person may commence an action in the district court against the Administrator for failing to perform a nondiscretion-ary act or duty. 42 U.S.C. § 7604(a). On the other hand, the courts of appeals have original jurisdiction to review challenges to final agency actions. 42 U.S.C. § 7607. CENEX maintains that jurisdiction was proper in the district court because EPA failed to perform a nondiscretionary duty by failing to recognize the lead credit purchase CENEX reported in its 1986 report for the fourth quarter. CENEX claims that it fully complied with all relevant regulations, and thus EPA was required to recognize the transfer as reported by CE-NEX. Whether a complaint alleges the failure of the Administrator to perform a nondiscretionary duty sufficient to give rise to citizen suit jurisdiction is a legal determination reviewable de novo. See Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1353-56 (9th Cir.1978). We note that some courts have stated that only a “clear-cut” nondiscretionary duty gives rise to section 304 jurisdiction. See Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C.Cir.1987) (section 304 permits “citizen enforcement of clear-cut violations by polluters or defaults by the Administrator”) (quotations omitted); Mountain States Legal Found. v. Costle, 630 F.2d 754, 766 (10th Cir.1980) (citizen suit jurisdiction proper only in action to enforce “specific nondiscretionary clear-cut requirements of the Clean Air Act”), cert. denied, 450 U.S. 1050, 101 S.Ct. 1770, 68 L.Ed.2d 246 (1981). CENEX, however, can point to nothing in either the statute or the regulations requiring EPA to recognize all lead credit transfers if duly reported. See Council of Commuter Orgs. v. Metropolitan Transp. Auth., 683 F.2d 663, 670 (2d Cir.1982) (“[w]e have scrutinized plaintiff’s rather abstruse amended complaint and its appendix in a generally unrewarding search for the precise provisions of the 1980 plan" }, { "docid": "6342599", "title": "", "text": "regulation clearly and unambiguously establishes a nondis-cretionary duty, the Court need not look any further to discern the agency’s interpretation. In re Sealed Case, 237 F.3d at 667. Accordingly,, this Court concludes that the duty established in 40 C.F.R. § 80.1045 is not discretionary. (2) Can a Regulation Create a Duty Actionable Under 42 U.S.C. § 7604(a)(2)? A party may only bring an action under 42 U.S.C. § 7604(a)(2) if the Administrator fails “to perform ány act or duty under this chapter which is nondiscretionary .... ” (emphasis added).\" This Court has already held that the Administrator had a nondiscretionary duty to act under 40 C.F.R. § 8Ó.1045. Thus, the second question this Court must address is whether the duty created by the regulation is encompassed within the phrase “under this chapter” as used in the Clean Air Act. The Court notes at the outset that because the Clean Air Act itself defines the jurisdiction of this Court, the agency’s interpretation is entitled to no deference. See Fox Television Stations, 280 F.3d at 1038-39. Again, this second question presents an issue of pure statutory interpretation. The defendant opines that the Clean Air Act’s citizen suit provision only permits actions which are based on duties imposed by the Act itself,- as opposed to authorizing actions arising out of duties creatéd by regulations promulgated under the Act. To support his argument, the defendant relies heavily on a case from the First Circuit, Maine v. Thomas, 874 F.2d 883 (1st Cir.1989). Moreover, the defendant contends that the structure of the Clean Air Act mandates the conclusion that the only duties arising directly from the statutory provisions of the Act itself are properly actionable under 42 U.S.C. § 7604(a)(2). To support this argument, the defendant relies principally upon the structure of § 7604(a)(2) as compared to the structure and substance of § 7607(b)(2). The plaintiffs, also relying on the structure of the Clean Air Act, contend that the § 7604(a)(2) permits citizen suits arising from duties imposed by regulations promulgated under' the Act. The Court will first address the positions espoused by the defendant." }, { "docid": "6342605", "title": "", "text": "not intend to create an action under § 7604(a)(2) to compel action in accordance with duties created pursuant to EPA regulations. Def.’s Mem. at 10. The defendant’s analysis is flawed for several reasons. First, § 7607(b)(2) specifically refers only to “nondiscretionary statutory duties.” This case does not involve a nondiscretionary statutory duty, but rather a nondiscretionary regulation created duty, thus § 7606(b)(2) is not applicable to this case. Second, the defendant’s interpretation too narrowly construes the several citizen suit provisions as a whole. Each provision of the Clean Air Act that authorizes citizen suits has a specific purpose. For example, § 7607(b)(2) permits an action which challenges the deferral of a nondiscretionary duty pursuant to § 7607(b)(1). If such action is successful, the deferral can be vacated. See, e.g., Davis v. U.S. E.P.A., 348 F.3d 772 (9th Cir.2003) (vacating an EPA order pursuant to the Court’s jurisdiction under 42 U.S.C. § 7607(b)(1)). Once vacated, an action to compel performance of the underlying non-discretionary duty can be maintained under § 7604(a)(2). Additionally, in cases where the agency has unreasonably delayed the promulgation of a regulation, a challenge can be brought pursuant to § 7604(a). Thus, there is no basis for the defendant’s narrow interpretation of the Clean Air Act’s citizen suit provision. This Court concludes that although the phrase “under this chapter” as used in the Clean Air Act is not defined, its meaning is readily discernable through the application of traditional tools of statutory construction. The phrase, “under this chapter,” is used pervasively throughout the Clean Air Act. See, e.g., 42 U.S.C. § 7478(a) (“applicable regulations under this chapter”); 7479(3) (“subject to regulation under this chapter”); 7503(a)(3) (“applicable emission limitations and standards under this chapter”); 7506(c)(2) (“applicable implementation plan in effect under this chapter”); 7515 (“issued by the Administrator under this chapter”); 7604(a)(1) (“an emission standard of limitation under this chapter”); 7661a(b)(5)(A) (“standard, regulation or requirement under this chapter”). Thus, so long as there is no reason to believe that Congress intended the phrase “under this chapter” to have different meanings in the various provisions of the Clean Air Act," }, { "docid": "21546209", "title": "", "text": "996, I hope merely to divine Congress’ desired approach to a range of specific circumstances. And if, after this analysis, I find that Congress created a “bureaucratic limbo,” so be it; I have no less confidence than Judge Silberman that the \"foundations of the Republic” would still be secure. See id. at 996. . In Abramowitz, EPA approved several aspects of California’s State Implementation Plan (\"SIP\") while failing to determine whether other portions of the proposed SIP would lead to attainment of statutory air quality standards by the statutory deadline, 832 F.2d at 1072; in Indiana and Michigan Electric, EPA approved Indiana’s revised SIP without taking action on a provision in it that called for averaging daily emissions, 733 F.2d at 490. . In reviewing a district court’s dismissal of a citizen suit, the Second Circuit found that EPA had a nondiscretionary duty to determine whether it would or would not revise secondary standards. Environmental Defense Fund v. Thomas, 870 F.2d 892, 898 n. 1 (2d Cir.), cert. denied sub nom. Alabama Power Co. v. Environmental Defense Fund, — U.S. -, 110 S.Ct. 537, 107 L.Ed.2d 535 (1989). We do not reach that issue here, however, because, unlike the Second Circuit case, the matter before us did not arise in the context of citizen suit litigation. . See State of Maine v. Thomas, 874 F.2d 883, 888 n. 7 (1st Cir.1989) (intimating that EPA’s failure to perform statutory duty, as opposed to self-imposed regulatory duty, would be proper “grist for the section 7604 mill”); EDF v. Thomas, 870 F.2d at 900 (remanding for district court order directing Administrator to continue rule-making to formal decision). In Sierra Club v. Thomas, 828 F.2d at 783, we found jurisdiction over claims of agency inaction or unreasonable agency delay arising out of the CAA based in part on Telecommunications Research and Action Center v. FCC, 750 F.2d 70 (D.C.Cir.1985) (\"TRAC\"). Sierra Club, 828 F.2d at 792. In Sierra Club, however, the rulemaking at issue was covered by the duty of timeliness set out in the APA, 5 U.S.C. § 706(1). Since the rulemaking at" }, { "docid": "6342603", "title": "", "text": "meeting the statutory deadline. Such regulatory duties are perhaps nondiscre-tionary, but they are not statutory non-discretionary duties; hence, they are not proper grist for the section 7604 mill. Id. at 888 n. 7. The defendant in this case places significant weight on this footnote, contending that the First Circuit held directly that regulations, such as the ones in this case, are not the proper basis for invoking the citizen suit provision in 42 U.S.C. § 7604 of the Clean Air Act. Def.’s Mem. at 9-10. Contrary to the defendant’s contention, the First Circuit has made no such pronouncement. The District of Columbia Circuit, after reviewing Maine v. Thomas, declared that footnote 7 of Maine, upon which the EPA relies, is merely “dicta in a footnote.” Nat’l Wildlife Fed. v. Browner, 127 F.3d 1126, 1129 n. 5 (D.C.Cir.1997). The Court also noted that the “EPA’s contention that only a duty imposed by the Clean Water Act itself can support a citizen suit appears to be an issue of first impression.” Id. Thus, Maine is of little value to the analysis of the case at hand and is hardly dispositive. The Court also finds no merit in the defendant’s second argument concerning the structure of the Clean Air Act. As support for its argument that the clause “under this chapter” as used in the Clean Air Act references only statutory duties, the defendant contends that 42 U.S.C. § 7607(b)(2) directly addresses nondiscre-tionary statutory actions and provides a mechanism to challenge the Administrator’s deferral of such actions as part of a final agency regulation. Def.’s Mem. at 10. Namely, § 7607(b)(2) states that “[wjhere a final decision by the Administrator defers performance of any nondis-cretionary statutory action to a later time, any person may challenge the deferral pursuant to paragraph (1) .... ” According to the defendant, while this section provides for a review of the EPA’s decision to defer some actions to a late date, it does not provide for an action to compel such actions. Thus, the defendant argues that reading § 7604 and § 7607 together demonstrates that Congress did" }, { "docid": "18946085", "title": "", "text": "Canyon, 593 F.3d at 932, meaning that it must be a “precise, definite act,” SUWA 542 U.S. at 63, 124 S.Ct. 2373, “but also ‘legally required,’ ” 593 F.3d at 932, meaning that the text of the statute or regulation contains an “unequivocal command” about which an official has “no discretion whatever,” 542 U.S. at 63, 124 S.Ct. 2373 (internal quotation marks omitted), such that the duty “could traditionally have been enforced through a writ of mandamus.” Hells Canyon, 593 F.3d at 932. A. Our analysis must focus exclusively on the text of the relevant statutes or regulations to determine whether this standard is satisfied. This purely textual approach, amounting to a “clear-statement rule,” is not unique to the section 706(1) context. It is indispensable whenever a statute requires us to determine whether a particular text obligates agency actors to assume a specific duty or to perform a discrete act. Like an action brought under section 706(1) of the APA, for example, a citizen suit may be brought under section 505(a)(2) of the Clean Water Act only where plaintiffs “allege[ ] a failure of the [EPA] Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.” 38 U.S.C. § 1365(a)(2). If plaintiffs are to succeed in their citizen suit against the Administrator, we have held that “the non-discretionary nature of the duty must be clear-cut — that is, readily ascertainable from the statute allegedly giving rise to the duty.” WildEarth Guardians v. McCarthy, 772 F.3d 1179, 1182 (9th Cir. 2014). In other words, “[w]e must be able to identify a ‘specific, unequivocal command’ from the text of the statute at issue using traditional tools of statutory interpretation; it’s not enough that such a command could be teased out ‘from an amalgamation of disputed statutory provisions and legislative history coupled with the [agency’s] own earlier interpretation.’ ” Id. (emphasis added), quoting Our Children’s Earth Found, v. E.P.A., 527 F.3d 842, 851 (9th Cir.2008) (stating that plaintiffs must “point to a nondiscretionary duty that is readily-ascertainable and not only [] the product of a set" }, { "docid": "18946086", "title": "", "text": "Act only where plaintiffs “allege[ ] a failure of the [EPA] Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.” 38 U.S.C. § 1365(a)(2). If plaintiffs are to succeed in their citizen suit against the Administrator, we have held that “the non-discretionary nature of the duty must be clear-cut — that is, readily ascertainable from the statute allegedly giving rise to the duty.” WildEarth Guardians v. McCarthy, 772 F.3d 1179, 1182 (9th Cir. 2014). In other words, “[w]e must be able to identify a ‘specific, unequivocal command’ from the text of the statute at issue using traditional tools of statutory interpretation; it’s not enough that such a command could be teased out ‘from an amalgamation of disputed statutory provisions and legislative history coupled with the [agency’s] own earlier interpretation.’ ” Id. (emphasis added), quoting Our Children’s Earth Found, v. E.P.A., 527 F.3d 842, 851 (9th Cir.2008) (stating that plaintiffs must “point to a nondiscretionary duty that is readily-ascertainable and not only [] the product of a set of inferences based on the overall statutory scheme” (alteration in original) (internal quotation marks omitted)). B. Because our inquiry under section 706(1) is necessarily limited to whether the text of the relevant Army regulations states a specific, unequivocal command to take discrete agency action, I cannot join the majority’s perusal of “internal agency discussions in the years leading up to the 1988 and 1990 revisions of [AR 70-25],” nor its discussion of the Army’s creation of volunteer databases in 1981 and 1986. The majority includes these historical observations because it believes they support our reading of AR 70-25. They do, of course, but that is irrelevant. Our job is to determine only whether a statute or regulation itself objectively creates a mandatory duty. As we have previously held, it is inappropriate “for us to divine a ‘specific, unequivocal command,’ from an amalgamation of disputed statutory provisions and legislative history coupled with the [agency’s] own earlier interpretation.” Our Children’s Earth Found., 527 F.3d at 851, quoting SUWA 542 U.S. at 63, 124 S.Ct. 2373. To be" }, { "docid": "12431387", "title": "", "text": "must lie in [the District of Columbia Circuit], for both courts have just so much jurisdiction as Congress has provided by statute.”). ■III. Jurisdiction of the district court over this suit turns upon the question of whether the Administrator’s challenged course of action violates a nondiscretionary duty imposed upon him by the terms of the Act. The Act sets forth its jurisdictional requirements: ■ ■ Except as provided in subsection (b) of this section [notice requirements], any person may commence a civil action on his own behalf— * * * * * * (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.... ****** The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, ... to order the Administrator to perform such act or duty, as the case may be.... 42 U.S.C. § 7604(a). We need decide today only whether the statute imposed upon the Administrator a nondiscretionary duty to process extension applications before he promulgated final regulations implementing the statutory program. See Sierra Club v. Train, 557 F.2d 485, 488 (5th Cir.1977) (“The substantive issue in this case is one of statutory construction, specifically whether [the Act] imposes a discretionary or non-discretionary duty on the EPA Administrator.”). We conclude that the statute is silent on this question and that we must therefore defer to the Administrator’s reasonable interpretation of the statute as not requiring the consideration of extension applications before the agency’s final regulations were in place. A. The district court concluded that the Administrator had a nondiscretionary duty under section 7651c(d)(3) to accept and review extension proposals immediately in the order of their receipt. J.A. at 357-58 (“[T]here is no statutory authority which suggests that' Congress authorized the EPA to defer consideration of extension proposals until [promulgation of permit program regulations].”). At the heart of the court’s holding was its conclusion that the Administrator’s obligation to review proposals in the order of receipt 'is “distinct from” his obligation under 42" }, { "docid": "21546210", "title": "", "text": "Environmental Defense Fund, — U.S. -, 110 S.Ct. 537, 107 L.Ed.2d 535 (1989). We do not reach that issue here, however, because, unlike the Second Circuit case, the matter before us did not arise in the context of citizen suit litigation. . See State of Maine v. Thomas, 874 F.2d 883, 888 n. 7 (1st Cir.1989) (intimating that EPA’s failure to perform statutory duty, as opposed to self-imposed regulatory duty, would be proper “grist for the section 7604 mill”); EDF v. Thomas, 870 F.2d at 900 (remanding for district court order directing Administrator to continue rule-making to formal decision). In Sierra Club v. Thomas, 828 F.2d at 783, we found jurisdiction over claims of agency inaction or unreasonable agency delay arising out of the CAA based in part on Telecommunications Research and Action Center v. FCC, 750 F.2d 70 (D.C.Cir.1985) (\"TRAC\"). Sierra Club, 828 F.2d at 792. In Sierra Club, however, the rulemaking at issue was covered by the duty of timeliness set out in the APA, 5 U.S.C. § 706(1). Since the rulemaking at issue here is specifically exempted from the requirements of the APA, 42 U.S.C. § 7607(d)(1)(A), Sierra Club is not apposite here. Sierra Club explains, moreover, that the type of appellate relief provided by TRAC is not available “where a statute instead commits review of an alleged instance of agency action (or here inaction) to the district court, as does [CAA] section 304(a)(2).\" 828 F.2d at 790. Thus, direct TIRAC-type intervention by us would be improper here. . Compare State of Maine v. Thomas, 874 F.2d at 883, in which the First Circuit treated as final action EPA’s promise to regulate regional haze once technology developed further. The Maine promise was, in effect, a decision to revise, albeit one whose implementation details were vague. In this case, conversely, EPA has not made a specific promise to develop a fine particle visibility standard; rather, it has issued an ANPR on visibility simultaneously with the completed rulemaking on other standards in order to invite immediate public comment on the visibility standard’s feasibility. . In Sierra Club v. Gorsuch," }, { "docid": "21546157", "title": "", "text": "examine review procedures in the CAA that do not depend on final agency action in order to backstop my conception of the availability of appellate review. The CAA specifically provides for a route to judicial intervention whenever EPA fails to perform a nondiscretionary statutory duty. As noted above, CAA § 304 authorizes plaintiffs aggrieved by EPA inaction to bring suits in federal district court for the purpose of requiring EPA to carry out its nondiscretionary duties. Although Congress originally envisioned this section as providing citizen oversight of inadequate EPA enforcement of air quality standards and regulations, S. Rep. No. 1196, at 36-38, § 304 suits have been successfully employed to enforce a broad range of EPA obligations to implement or issue air quality regulations. 1 W. Rodgers, Environmental Law: Air and Water § 3.4, at 223-24 (1986). Petitioners in a citizen suit must show, of course, that the EPA Administrator has failed to perform some nondis-cretionary duty. While the line between discretionary and nondiscretionary obligations is sometimes blurry, id., that determination is made in the first instance by the district court exercising jurisdiction over the citizen suit. The precise circumstances under which EPA would fail to meet its obligations under § 109(d)(1) are, therefore, not at issue today. The Administrative Procedure Act’s (“APA”) mandate for courts to “compel agency action ... unreasonably delayed,” 5 U.S.C. § 706(1) (1988), is inapplicable to judicial review of a number of types of EPA rulemaking pursuant to the CAA, including rulemaking on NAAQS revisions. See CAA § 307(d)(1), (9), 42 U.S.C. § 7607(d)(1), (9). In Sierra Club v. Thomas, 828 F.2d 783 (D.C.Cir.1987), we noted that the Clean Air Act’s citizen suit is available to remedy the Administrator’s “failure ... to perform” a “nondiscretionary duty of timeliness.” Id., 828 F.2d at 790. Thus, § 304 may in appropriate circumstances provide a check against indefinite stalling by EPA to avoid or evade mandatory substantive decisions. Admittedly, the boundary lines between §§ 304 and 307 jurisdiction have been blurred by judicial rulings responding to an infinite variety of factual scenarios so that now a “sizeable” overlap" }, { "docid": "13221507", "title": "", "text": "FLOYD, Circuit Judge: In this case, we consider the bounds of a federal court’s authority under the Clean Air Act (CAA) to correct an alleged failure by the U.S. Environmental Protection Agency (EPA) to perform a non-discretionary, CAA-based act or duty. See 42 U.S.C. § 7604(a)(2). The precise issue before us is whether this authority extends to review of the EPA’s management of its continuous duty to evaluate the potential employment impact of CAA administration and enforcement. See 42 U.S.C. § 7621(a). We hold that it does not. I. In 1977, after extensive public debate about the effects of the CAA’s environmental rules on employment, Congress enacted Section 321 of the CAA as a mechanism for reviewing those effects. See H.R. Rep. No. 95-294, at 316-18 (1977), reprinted in 1977 U.S.C.C.A.N. 1077, 1395-97. At issue in this case is Section 321(a) of the CAA, 42 U.S.C. § 7621(a), which directs the EPA to continuously evaluate the potential employment impact of CAA administration and enforcement. Section 321(a) provides: The [EPA] Administrator shall conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of this chapter and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement. 42 U.S.C. § 7621(a). In 2014, Murray Energy Corporation and related companies (collectively, “Mur ray”) filed the instant suit against the EPA Administrator, alleging a failure to comply with Section 321(a). Murray filed its suit under Section 304(a)(2) of the CAA, 42 U.S.C. § 7604(a)(2), which in pertinent part provides: “[A]ny person may commence a civil action on his own behalf ... against the [EPA] Administrator where there is alleged a failure of the Administrator to perform any act or duty under [the CAA] which is not discretionary with the Administrator.” Murray’s suit requested an injunction (1) ordering the EPA to conduct Section 321(a) evaluations; and (2) prohibiting the EPA from engaging in certain regulatory activities until it had conducted such evaluations. At the outset of the litigation, the EPA moved to dismiss" }, { "docid": "13221508", "title": "", "text": "potential loss or shifts of employment which may result from the administration or enforcement of the provision of this chapter and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement. 42 U.S.C. § 7621(a). In 2014, Murray Energy Corporation and related companies (collectively, “Mur ray”) filed the instant suit against the EPA Administrator, alleging a failure to comply with Section 321(a). Murray filed its suit under Section 304(a)(2) of the CAA, 42 U.S.C. § 7604(a)(2), which in pertinent part provides: “[A]ny person may commence a civil action on his own behalf ... against the [EPA] Administrator where there is alleged a failure of the Administrator to perform any act or duty under [the CAA] which is not discretionary with the Administrator.” Murray’s suit requested an injunction (1) ordering the EPA to conduct Section 321(a) evaluations; and (2) prohibiting the EPA from engaging in certain regulatory activities until it had conducted such evaluations. At the outset of the litigation, the EPA moved to dismiss Murray’s suit on jurisdictional grounds. The EPA first argued that its Section 321(a) duty was not a non-discretionary duty cognizable under Section 304(a)(2). In a subsequent filing, the EPA added that Murray lacked standing to challenge the EPA’s alleged non-compliance with Section 321(a). The district court rejected both of the EPA’s jurisdictional arguments, and declined to dismiss Murray’s suit at the pleading stage. Subsequently, the EPA moved for summary judgment and simultaneously proffered fifty-three documents to prove the agency’s compliance with Section 321(a). The EPA’s documents — which the agency conceded had not been prepared explicitly for the purpose of Section 321(a) compliance — included regulatory impact analy-ses, economic impact analyses, white papers, and other reports. The EPA asked the district court to grant summary judgment in its favor on the basis of its proffer or, in the alternative, that the court grant summary judgment in Murray’s favor if it were to conclude that the agency’s proffer was insufficient. Murray moved to hold in abeyance the EPA’s motion for summary judgment pending the completion of" }, { "docid": "21546156", "title": "", "text": "appropriate at all. Such tentative action may well fall short of the agency’s nondiscretionary statutory responsibilities. See NRDC Br. at 13 (discussing regulatory requirements imposed by § 109). Nonetheless, since the Administrator’s de-cisionmaking for the cycle would still be in progress, the rulemaking could not, logically, be called “final” and would fall outside our jurisdiction. Although not asserting jurisdiction in this situation may enable EPA to avoid appellate review by putting out even preliminary rulemaking feelers, I believe that restricting our jurisdiction in this manner affords a healthy and substantial measure of deference to agencies dealing, however slowly, with complex issues. This view of the finality requirement for review under § 307 would, nonetheless, be highly troublesome if it left EPA free of all review whenever it declined to decide whether revision of the standards was appropriate or inappropriate. A statutory scheme enabling EPA to evade review of even the most egregious footdragging would be inconsistent with Congress’ goal of carefully monitoring polluting emissions into the ambient air. H.R.Rep. No. 294, at 182. Consequently, I examine review procedures in the CAA that do not depend on final agency action in order to backstop my conception of the availability of appellate review. The CAA specifically provides for a route to judicial intervention whenever EPA fails to perform a nondiscretionary statutory duty. As noted above, CAA § 304 authorizes plaintiffs aggrieved by EPA inaction to bring suits in federal district court for the purpose of requiring EPA to carry out its nondiscretionary duties. Although Congress originally envisioned this section as providing citizen oversight of inadequate EPA enforcement of air quality standards and regulations, S. Rep. No. 1196, at 36-38, § 304 suits have been successfully employed to enforce a broad range of EPA obligations to implement or issue air quality regulations. 1 W. Rodgers, Environmental Law: Air and Water § 3.4, at 223-24 (1986). Petitioners in a citizen suit must show, of course, that the EPA Administrator has failed to perform some nondis-cretionary duty. While the line between discretionary and nondiscretionary obligations is sometimes blurry, id., that determination is made in the" }, { "docid": "424115", "title": "", "text": "promulgated and thus are within the terms of 509(b)(1)(A), 33 U.S.C. § 1369(b)(1)(A). The National Coal Association argues that the suit in essence challenges the failure of the Administrator to act with respect to post-mining discharges and thus jurisdiction is governed by the citizens’ suit provision of the Act. Id. § 1365. That section provides that a citizen, as defined in the Act, see id. § 1365(g), may commence a civil action on his own behalf in two general types of cases, including a civil action against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. Id. § 1365(a)(2). Unlike many other statutes providing for judicial review of agency action in the court of appeals, section 509 is not in terms limited to final agency action. Thus arguably EPA action postponing a decision can be reviewed here. Thus the resolution of this jurisdictional dispute ultimately depends upon whether section 509 review was intended by Congress to encompass omissions from regulations or failure to promulgate regulations under section 306 or whether such failures and omissions were intended to be included as nondiscretionary duties of the Administrator reviewable. under section 505. Unfortunately the legislative history of the two provisions is not illuminating. Nor does the legislative history of section 306 provide any clue to congressional intent with regard to the split review scheme. We conclude that these cases are suits seeking to have this court compel the Administrator to perform a nondiscretionary duty and, as such, they should have been brought in federal district court pursuant to section 505 of the Act. Thus, we adopt the analysis of the Act’s jurisdictional scheme adopted by the District of Columbia Circuit in a similar factual setting. See Environmental Defense Fund v. EPA (EDF), 194 U.S.App.D.C. 143, 171-172, 598 F.2d 62, 90-91 (D.C. Cir. 1978). EDF challenged the EPA’s failure to include past manufacturers and users of polychlorinated biphenyls in its polychlorinated biphenyl regulations. EDF petitioned the court of appeals for review of this omission from the" }, { "docid": "2376657", "title": "", "text": "so easily resolved. For unlike the statute involved in TRAC, and unlike most regulatory statutes with which we are familiar, the Act itself establishes, in section 304, a role for the district court in reviewing agency action. This “citizen suits” provision states, in relevant part, that: any person may commence a civil action on his own behalf — against the [EPA] Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator____ The district courts shall have jurisdiction ... to order the Administrator to perform such act or duty. Act § 304(a)(2). In three cases decided in 1975, we determined that this “citizen suits” provision grants independent jurisdiction to the district court over claims alleging that EPA has failed to perform a “nondiscretionary” duty. One of these cases, NRDC v. Train, warrants extended discussion here. In that case, we address NRDC’s claim that, by failing to promulgate enforcement guidelines for Group I sources, which the statute had enumerated for regulation, and for Group II sources, which the statute had left to the EPA Administrator to enumerate, EPA had failed to perform “a mandatory, nondiscretionary duty” to act in a timely fashion. NRDC relied principally upon the deadline established in the statute, which required publication of such guidelines “within one year of October 18, 1972.” As to the Group I sources, we concluded that the October 18, 1973 deadline did indeed impose a nondiscretionary duty of timeliness, and that therefore the district court had jurisdiction “to compel performance of a statutory duty that has been unreasonably delayed.” Whether the statute also imposed a non-discretionary duty of timeliness with respect to promulgating guidelines for the Group II sources was a much more difficult issue to resolve. In contrast to the Group I sources, the Administrator argued that, notwithstanding the October 18,1973 deadline, the statute provided him with “discretion over the date of publication of guidelines for those categories of point sources contained in Group II.” The Administrator’s argument, basically, was that whereas the Group I sources were" }, { "docid": "6342600", "title": "", "text": "this second question presents an issue of pure statutory interpretation. The defendant opines that the Clean Air Act’s citizen suit provision only permits actions which are based on duties imposed by the Act itself,- as opposed to authorizing actions arising out of duties creatéd by regulations promulgated under the Act. To support his argument, the defendant relies heavily on a case from the First Circuit, Maine v. Thomas, 874 F.2d 883 (1st Cir.1989). Moreover, the defendant contends that the structure of the Clean Air Act mandates the conclusion that the only duties arising directly from the statutory provisions of the Act itself are properly actionable under 42 U.S.C. § 7604(a)(2). To support this argument, the defendant relies principally upon the structure of § 7604(a)(2) as compared to the structure and substance of § 7607(b)(2). The plaintiffs, also relying on the structure of the Clean Air Act, contend that the § 7604(a)(2) permits citizen suits arising from duties imposed by regulations promulgated under' the Act. The Court will first address the positions espoused by the defendant. In Maine v. Thomas, the First Circuit addressed the EPA’s duty pursuant to the Clean Air Act to address an atmospheric condition known as “regional haze.” Maine, 874 F.2d at 885. The facts in Maine are substantially similar to the facts here, however, the EPA reliance on the case '-is misplaced. Under consideration there was 42 U.S.C. § 7491, which required the EPA to promulgate regulations concerning “regional haze” by August 1979. When the EPA failed to comply with this nondiscretionary statutory deadline, various citizen groups brought suit to compel that action be taken. Id. at 886. Shortly after the lawsuit was filed, the EPA entered into a consent decree agreeing to issue certain regulations in 1980. Id. at 885. The 1980 regulations, however, at least as to regional haze, “amounted to the Agency’s promise to deal substantively with the matter in future rules and orders.” Id. Six years later, another lawsuit was brought against the EPA under the citizen suit provision of the Clean Air Act. Id. at 886. The question before the First" }, { "docid": "6342604", "title": "", "text": "value to the analysis of the case at hand and is hardly dispositive. The Court also finds no merit in the defendant’s second argument concerning the structure of the Clean Air Act. As support for its argument that the clause “under this chapter” as used in the Clean Air Act references only statutory duties, the defendant contends that 42 U.S.C. § 7607(b)(2) directly addresses nondiscre-tionary statutory actions and provides a mechanism to challenge the Administrator’s deferral of such actions as part of a final agency regulation. Def.’s Mem. at 10. Namely, § 7607(b)(2) states that “[wjhere a final decision by the Administrator defers performance of any nondis-cretionary statutory action to a later time, any person may challenge the deferral pursuant to paragraph (1) .... ” According to the defendant, while this section provides for a review of the EPA’s decision to defer some actions to a late date, it does not provide for an action to compel such actions. Thus, the defendant argues that reading § 7604 and § 7607 together demonstrates that Congress did not intend to create an action under § 7604(a)(2) to compel action in accordance with duties created pursuant to EPA regulations. Def.’s Mem. at 10. The defendant’s analysis is flawed for several reasons. First, § 7607(b)(2) specifically refers only to “nondiscretionary statutory duties.” This case does not involve a nondiscretionary statutory duty, but rather a nondiscretionary regulation created duty, thus § 7606(b)(2) is not applicable to this case. Second, the defendant’s interpretation too narrowly construes the several citizen suit provisions as a whole. Each provision of the Clean Air Act that authorizes citizen suits has a specific purpose. For example, § 7607(b)(2) permits an action which challenges the deferral of a nondiscretionary duty pursuant to § 7607(b)(1). If such action is successful, the deferral can be vacated. See, e.g., Davis v. U.S. E.P.A., 348 F.3d 772 (9th Cir.2003) (vacating an EPA order pursuant to the Court’s jurisdiction under 42 U.S.C. § 7607(b)(1)). Once vacated, an action to compel performance of the underlying non-discretionary duty can be maintained under § 7604(a)(2). Additionally, in cases where the" } ]

[ { "docid": "5558431", "title": "", "text": "statute, Conn. Gen. Stat. § 46a-60(a)(l). Defendant makes only one attack against her state claim, namely, that it should be dismissed for the same reasons as her ADEA claim. But as her ADEA discrimination claim has survived summary judgment, see infra III.C, so too does her state age discrimination claim. 2. Plaintiffs state laio disability discrimination claim In addition to her ADA discrimination claim, Plaintiff also brings a claim under the Connecticut disability discrimination statute, Conn. Gen. Stat. § 46a-60(a)(1). In the absence of direct evidence of employment discrimination, when analyzing Connecticut courts are to employ the McDonnell Douglas-Burdine model of analysis. See Ann Howard’s Apricots Rest., Inc. v. Comm’n on Human Rights & Opportunities, 237 Conn. 209, 224-25, 676 A.2d 844 (1996); see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under Connecticut law, just as under the ADA, to establish a prima facie case of discrimination, Plaintiff must show (1) she was a member of a protected group; (2) she was qualified for the job; (3) she suffered an adverse employment decision; and (4) the adverse employment decision occurred under circumstances giving rise to a reasonable inference of discrimination. See Feathers v. Vivisection Investigation League, Inc., 2000 WL 1340365, at ;::2 (Conn.Super.Ct. Aug. 31, 2000); Gilman Bros. v. Conn. Comm’n on Human Rights & Opportuni ties, 1997 WL 275578, at *5 (Conn.Super.Ct. May 13, 1997). a. Plaintiff shows she is acUtally disabled under the CFEPA and hence a member of a protected group To be “disabled” under Connecticut law is different from being “disabled” under the ADA. See, e.g., Venclauskas v. State, 1997 WL 375654 (Conn.Super.Ct. May 14, 1997). To be disabled under Connecticut law, one needs “any chronic physical handicap, infirmity or impairment -” Conn. Gen. Stat. § 46a-51(15). Neither the state statute nor the ADA defines “chronic.” Citing BLACK’S. LAW DICTIONARY 241-242 (6th ed.1990), the Connecticut superior court in Gilman Brothers, supra at 1997 WL 275578, *4, held reasonable" } ]

[ { "docid": "2343408", "title": "", "text": "essentially pre-dates the definition of physical disability promulgated by the Connecticut General Assembly for the CFEPA, the General Assembly, had it wished to do so, could have adopted the ADA definition. The fact that the General Assembly chose not to adopt that language readily supports an inference that the Connecticut legislature appreciated the scope of the ADA definition and intended the CFEPA definition to be different. See Evening Sentinel, 168 Conn. at 34-35 n. 5, 357 A.2d 498. Moreover, the case law on point, although not extensive, uniformly confirms our belief that the CFEPA’s definition of physical disability is broader than the ADA’s. For example, in Shaw v. Greenwich Anesthesiology Assocs., P.C., 137 F.Supp.2d 48 (D.Conn.2001), the district court dismissed a plaintiffs ADA claim on summary judgment finding that her arthritis did not substantially limit a major life activity, see id at 54, but refused to grant summary judgment with respect to the plaintiffs CFEPA claim, ruling that “[t]o be ‘disabled’ under Connecticut law is different from being ‘disabled’ under the ADA.” Id at 65. The district court in Shaw cited as authority Venclauskas v. State, No. CV 960471879, 1997 Conn.Super. LEXIS 1643, 1997 WL 375654 (Conn.Super. May 14, 1997). In Venclaus-kas a Connecticut Superior Court rejected a defendant’s assertion that a CFEPA plaintiff, “by analogy to federal anti-discrimination statutes,” could not be considered disabled within the meaning of the CFEPA. Id at *1. Instead the state court held that, without reference to whether plaintiffs physical impairment substantially limited a major life activity, plaintiff had alleged sufficient facts to support a finding that he was disabled within the meaning of Connecticut state law. Id at *3, *6-*7. At least two other Connecticut Superior Courts have similarly ruled plaintiffs to be disabled pursuant to the CFEPA without considering or mentioning whether those plaintiffs were substantially limited in a major life activity. See Gilman Bros. Co. v. Conn. Comm’n on Human Rights & Opportunities, No. CV 950536075, 1997 Conn.Super. LEXIS 1311, *8-*10, 1997 WL 275578 (Conn.Super. May 13, 1997); Tordonato v. Colt’s Mfg. Co., No. CV 970481610S, 2000 Conn.Super. LEXIS 3615, *13-*14," }, { "docid": "2343414", "title": "", "text": "impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device. Conn. Gen.Stat. § 46a-51(15). Thus, the statute defines “[p]hysically disabled” only by using the active verb “has.” Conspicuously absent from this definition is any mention of the perception of a physical disability. This absence stands in stark contrast to the definition of disability employed by the ADA. The federal statute provides that the term disability “means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2) (emphasis added); see also 29 U.S.C. § 705(20)(B) (similarly defining “individual with a disability” for the Rehabilitation Act). Because the specific language of CFEPA makes no mention of a cause of action for “perceived” or “regarded as” physical disability discrimination, we do not believe it was part of the Connecticut legislature’s purpose that such a cause exist. B. Legislative History Another foray into the legislative history of the CFEPA provides substantiation for this view. First, as stated above in Section II, the Rehabilitation Act’s definition of a handicapped individual — the precursor to the modern ADA definition of disability — was approved by Congress in 1974, one year before Connecticut enacted the CFEPA definition of physical disability that, in substance, has survived until this day. Significantly, the Rehabilitation Act’s definition, which originated the federal requirement that an impairment substantially limit a major life activity in order to qualify as a disability, also amended the Act to extend its protections to individuals “regarded as having” such a substantially limiting impairment. See Rehabilitation Act Amendments of 1974, Pub.L. No. 93-651, § 111, 89 Stat. 2-3, 2-5 (1974). Consistent with the notion that the Connecticut General Assembly, if it had wanted to do so, could have adopted the Rehabilitation Act’s “substantially limit a major life" }, { "docid": "17497115", "title": "", "text": "for summary judgment with respect to Counts One and Two. 2. Failure to provide reasonable accommodation and retaliation in violation of the ADA, CFEPA, and FMLA In addition to his discrimination claim, plaintiff brings additional claims under the ADA, CFEPA, and FMLA. These claims are similar to the disability discrimination claim just discussed. “A plaintiff makes out a prima facie case of disability discrimination arising from a failure to accommodate,” for instance, “by showing each of the following: (1) [Plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.” McBride v. BIC Consumer Prod. Mfg. Co., 583 F.3d 92, 96-97 (2d Cir. 2009). While CFEPA defines disability more broadly than the ADA, the ADA and CFEPA apply the same standards for reasonable accommodation. See Martinsky v. City of Bridgeport, 504 Fed.Appx. 43, 48 (2d Cir. 2012). The ADA, CFEPA, and FMLA also prohibit retaliating against individuals for exercising their legal rights under each statute. See 42 U.S.C. § 12203; Conn. Gen. Stat. § 46a-60(a)(4); Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 147 (2d Cir. 2012). As discussed above, plaintiff has raised a genuine issue of fact about whether he was disabled, about whether he would have been able to work with a reasonable accommodation of leave for an additional reasonable and finite period of time, and about whether he was terminated for discriminatory and retaliatory reasons relating to his disability and his requests for leave. Accordingly, I will deny defendant’s motion for summary judgment with respect to Counts Three through Six as well as Count Eight. 3. Retaliation in violation of the Connecticut Workers’ Compensation statute Plaintiff also alleges that he was terminated in violation of the Connecticut Workers’ Compensation statute, Conn. Gen. Stat. § 31-290a. “To establish a pri-ma facie case of discrimination under § 31-290a, the plaintiff must show that she was exercising a" }, { "docid": "13240751", "title": "", "text": "after a careful review of the record, the Court concludes that there are genuine issues of material fact as to Plaintiffs disability discrimination claims set forth in Count III and denies Defendant’s motion for summary judgment as to Count III. TV. Plaintiffs CFEPA Claims A. Violation of Conn. GenStat. § k6a-60(a)(1) for Disability Discrimination In Count IV, Plaintiff alleges that Defendant unlawfully discriminated against her in violation of CFEPA, Conn. Gen. Stat. § 46a-60(a)(l), by discharging her from employment and discriminating against her in the terms, conditions, and privileges of employment because of her physical disability. Connecticut’s Fair Employment Practices Act makes it a discriminatory practice for an employer to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions, or privileges of employment because of, inter alia, the individual’s physical disability. Conn. Gen. Stat. § 46a — 60(a)(1). Under CFEPA, a claim of discrimination must be filed within 180 days after the alleged discriminatory act. Conn. Gen. Stat. Ann. § 46a-82(f). Since Plaintiffs charge of discrimination was filed on February 10, 2011, only those discrete acts of discrimination occurring on or after August 14, 2010, are actionable. The only act that Plaintiff alleges is Defendant’s failure to reinstate her. As discussed above, while evidence of actions prior to this event can be admitted as background evi dence, the only acts of discrimination as to which Plaintiff can seek any recovery are those occurring after August 14, 2010. While CFEPA and the ADA are not identical, Connecticut courts apply the same standards to analyze CFEPA disability claims as are applied to ADA disability claims. Wanamaker, 899 F.Supp.2d at 212 (noting that CFEPA has a broader definition of disability than the ADA). For the same reasons as set forth above with respect to Plaintiffs claims under the ADA, the Court finds genuine issues of material fact that preclude the grant of summary judgment in favor of Defendant. B. Violation of Conn. Gen.Stat. § i6a-60(a)(7) for Pregnancy Discrimination Count V of Plaintiffs Amended Complaint asserts a state-law claim for pregnancy discrimination under CFEPA, Conn. Gen.Stat." }, { "docid": "2343403", "title": "", "text": "statutory construction that are specific to the interpretation of the state’s anti-discrimination statutes. First, it has indicated that it interprets remedial statutes “liberally in order to effectuate the legislature’s intent.” Comm’n on Human Rights & Opportunities v. Sullivan Assocs., 250 Conn. 763, 782, 739 A.2d 238 (1999). Second, it has revealed a willingness to “review federal precedent concerning employment discrimination for guidance in enforcing [the state’s] own anti-discrimination statutes,” Levy v. Comm’n on Human Rights & Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996), but has cautioned that it is not bound by federal interpretation and that, under certain circumstances, federal law “defines the beginning and not the end of [Connecticut courts’] approach to the subject,” State v. Comm’n on Human Rights & Opportunities, 211 Conn. 464, 470, 559 A.2d 1120 (1989). Third, Connecticut’s highest Court has also declared that, when comparing comparable state and federal statutes, it employs “the usual rule in statutory interpretation, that the difference between the state and federal acts was purposeful and is meaningful.” Evening Sentinel v. Nat’l Org. For Women, 168 Conn. 26, 34-35 n. 5, 357 A.2d 498 (1975). II CFEPA Definition of “Physically Disabled” With this overview of the state Supreme Court’s approach to statutory interpretation, we turn to the questions before us. We fully recognize that affir-mance may rest entirely on the discussion in Part III but undertake the following analysis in Part II in the interest of completeness. The district court dismissed appellant’s CFEPA claim without lengthy analysis. It observed that federal law concerning employment discrimination guides the enforcement of Connecticut’s anti-discrimination statutes and then reasoned that, because appellant could.not make out a prima facie case of discrimination under the ADA, his CFE-PA claim necessarily failed as well. This analysis, however, assumed that there are no substantive differences between the scope of the ADA and the CFEPA and required, for both claims, that the appellant demonstrate that he was perceived to have a - physical impairment that substantially limits a major life activity. We think this was error. Following the Connecticut Supreme Court’s lead, we begin our analysis with" }, { "docid": "2343410", "title": "", "text": "2000 WL 33124392 (Conn.Super.Ct. 26, 2000). Moreover, the Connecticut Commission on Human Rights and Opportunities, which enforces the CFEPA in administrative proceedings, has recognized the difference between Connecticut and federal law regarding the definition of disability. See, e.g., CHRO ex rel. Kowalczyk v. City of New Britain, CHRO No. 9810482, at *25-*26 (Mar. 15, 2002) (“The definitions of ‘disability’ in the ADA and [CjFEPA — and the interpretive case law — differ significantly .... [C] FEPA, unlike the ADA, does not require the complainant to prove that she is substantially limited in a major life activity.”); CHRO ex rel. Saksena v. State, CHRO No. 9940089, at *10 (Aug. 9, 2001) (same); CHRO ex rel. Secondo v. Hous. Auth., CHRO No. 9710713, at *24 (June 9, 2000) (“Although the complainant is not disabled under the ADA ... the broader definition of disability under state law yields a different result than the federal definition.”). We note, in addition, that the New York Human Rights Law, N.Y. Exec. Law § 290 et seq., a state anti-discrimination statute that, like the CFEPA, lacks any mention of the ADA’s “substantially limit a major life activity” language in its definition of disability, see id. § 292(21), has been interpreted by the New York Court of Appeals as providing relief to a broader range of impairments than does the ADA. See State Div. of Human Rights v. Xerox Corp., 65 N.Y.2d 213, 218-19, 491 N.Y.S.2d 106, 480 N.E.2d 695 (1985); see also Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 155 (2d Cir.1998) (discussing the standard for finding a protected disability under New York law). In sum, the trial court — by relying on the ADA’s standard for determining whether a person is disabled within the meaning of that state statute — committed an error of law that resulted in its improperly dismissing Beason’s CFEPA claim. Ill CFEPA and “Regarded As” Disability Discrimination Our conclusion that the district court erroneously construed the scope of the CFEPA definition of physical disability does not end the inquiry into whether the grant of summary judgment for the employer" }, { "docid": "2343411", "title": "", "text": "like the CFEPA, lacks any mention of the ADA’s “substantially limit a major life activity” language in its definition of disability, see id. § 292(21), has been interpreted by the New York Court of Appeals as providing relief to a broader range of impairments than does the ADA. See State Div. of Human Rights v. Xerox Corp., 65 N.Y.2d 213, 218-19, 491 N.Y.S.2d 106, 480 N.E.2d 695 (1985); see also Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 155 (2d Cir.1998) (discussing the standard for finding a protected disability under New York law). In sum, the trial court — by relying on the ADA’s standard for determining whether a person is disabled within the meaning of that state statute — committed an error of law that resulted in its improperly dismissing Beason’s CFEPA claim. Ill CFEPA and “Regarded As” Disability Discrimination Our conclusion that the district court erroneously construed the scope of the CFEPA definition of physical disability does not end the inquiry into whether the grant of summary judgment for the employer was proper. Hamilton Standard avers that, the relevant definition of physical disability aside, the appellant actually benefítted from another error of law committed by the district court, namely, the district court’s recognition of a cause of action for “regarded as” or “perceived” physical disability discrimination. The company urged this point before the trial court, which remained unpersuaded. That court declared instead that Connecticut has recognized the claims of those persons who have been discriminated against based on the perception of a disability, rather than an actual disability. Beason, 213 F.Supp.2d at 115. The employer insists that it was rightfully granted summary judgment on its employee’s CFEPA claim because the trial court erred in recognizing such a cause of action in the first place. We agree that Connecticut law does not provide a cause of action for perceived physical disability discrimination. A. Statutory Language As in our discussion of the first issue, analysis begins with a close reading of the statute in question. The exact language of the relevant provision, of the CFEPA reads as follows" }, { "docid": "2343395", "title": "", "text": "position that Beason was conditionally recalled for was referred to as a Commuter Blade Worker. Under the union’s collective bargaining agreement, this position was categorized as demanding an intermediate level of physical effort, necessitating sustained periods of moderate physical effort and the occasional exertion of considerable effort involving heavy tools and materials. After his evaluation by the Hamilton Standard medical staff, Beason was informed that he could not return to work because of medical restrictions related to the injuries he had sustained in the September 1992 on-the-job accident. In 1995 the employee’s union filed a grievance on his behalf, and also on behalf of four other Hamilton Standard employees who were not recalled to work, alleging that the company violated the non-discrimination clause contained in the collective bargaining agreement. The matter was submitted to arbitration and the grievance was denied. While the union grievance was pending, plaintiff filed a charge of disability discrimination with the Connecticut Commission on Human Rights and Opportunities (Connecticut Commission) and the Equal Employment Opportunity Commission (EEOC). An investigation by the Connecticut Commission determined there was reasonable cause to believe that Hamilton Standard, by failing to recall Beason to work, discriminated against him in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Connecticut Fair Employment Practices Act (CFEPA), Conn. Gen.Stat. § 46a-51 et seq. Subsequently, plaintiff filed a complaint in district court asserting that Hamilton Standard had incorrectly perceived him as disabled and discriminated against him as a disabled person in violation of the ADA and the CFEPA. The company initially moved for judgment on the pleadings, urging that plaintiffs complaint be dismissed because discrimination claims under the collective bargaining agreement are subject to arbitration, and that his claim was barred by the prior decision of the arbitrator denying his grievance. In an opinion dated February 10, 1999, the district court denied Hamilton Standard’s motion. Beason v. United Techs. Corp., 37 F.Supp.2d 127, 128 (D.Conn.1999). It reasoned that because plaintiffs claims are statutory, not contractual, they are not subject to arbitration. Id. at 129-30. The company then moved" }, { "docid": "2343399", "title": "", "text": "judgment on his motion for reconsideration, and thus his notice of appeal does not technically encompass that judgment. Under these circumstances, where the district court has had, in fact, an opportunity to rule on the substantive issues and where such issues are purely legal, we choose to exercise our discretion and to credit in this appeal before us the arguments Beason first made in support of his motion for reconsideration. DISCUSSION I Overview and Standards Although appellant initially pursued claims under both the ADA and the CFE-PA, he now appeals only the district court’s dismissal of his CFEPA cause of action, contending that the grant of summary judgment in favor of his employer constituted an error of law. Beason asserts the ADA’s definition of disability is different from — and much narrower than — the applicable CFEPA definition of physical disability. He maintains that the trial court’s decision, which employed ADA standards to evaluate his CFEPA claim, was thus in error. The appellant is joined in this argument by the Connecticut Commission, which filed an amicus curiae brief advising that the trial court erred in applying an analysis lifted from the Americans with Disabilities Act to a claim of discrimination on the basis of physical disability under Connecticut state law. Hamilton Standard does not dispute Beason’s argument that it was an error to employ the ADA’s definition of disability to decide a CFEPA claim. The company instead urges that the district court committed a separate error of law by recognizing a cause of action for perceived (or “regarded as”) disability discrimination, which, the company insists, is contemplated by the ADA, but not by the CFEPA. Our review of the district court’s grant of summary judgment is de novo. Zalewska v. County of Sullivan, 316 F.3d 314, 318 (2d Cir.2003). In the case at hand we must answer two questions: (1) whether the CFEPA definition of physical disability differs substantively from the ADA’s definition of disability, and (2) whether the CFEPA provides a cause of action for perceived physical disability discrimination. We take up each of these questions of Connecticut law" }, { "docid": "2343404", "title": "", "text": "For Women, 168 Conn. 26, 34-35 n. 5, 357 A.2d 498 (1975). II CFEPA Definition of “Physically Disabled” With this overview of the state Supreme Court’s approach to statutory interpretation, we turn to the questions before us. We fully recognize that affir-mance may rest entirely on the discussion in Part III but undertake the following analysis in Part II in the interest of completeness. The district court dismissed appellant’s CFEPA claim without lengthy analysis. It observed that federal law concerning employment discrimination guides the enforcement of Connecticut’s anti-discrimination statutes and then reasoned that, because appellant could.not make out a prima facie case of discrimination under the ADA, his CFE-PA claim necessarily failed as well. This analysis, however, assumed that there are no substantive differences between the scope of the ADA and the CFEPA and required, for both claims, that the appellant demonstrate that he was perceived to have a - physical impairment that substantially limits a major life activity. We think this was error. Following the Connecticut Supreme Court’s lead, we begin our analysis with an examination of the plain text of the CFEPA, comparing it to the relevant text of the ADA. Under the CFEPA it is a prohibited practice for an employer — except in the case of a bona fide occupational qualification or need — to refuse to hire or employ or to discharge from employment an individual because of the individual’s physical disability. Conn. Gen.Stat. § 46a—60(a)(1). The CFEPA defines the term “[p]hysically disabled” as “refer[ring] to any individual who has any chronic physical handicap, infirmity or impairment.” Conn. Gen.Stat. § 46a-51(15) (emphasis added). The ADA also prohibits disability-based discrimination and similarly defines disability as “a physical or mental impairment.” But, significantly, it adds a requirement that the impairment “substantially limit[] one or more of the major life activities of [the] individual.” 42 U.S.C. § 12102(2)(A) (emphasis added). We have ruled that the ADA’s requirement that a physical disability substantially limit a major fife activity is “a significant threshold for seeking redress under the ADA.” Felix v. N.Y. City Transit Auth., 324 F.3d 102, 107 (2d" }, { "docid": "2343400", "title": "", "text": "amicus curiae brief advising that the trial court erred in applying an analysis lifted from the Americans with Disabilities Act to a claim of discrimination on the basis of physical disability under Connecticut state law. Hamilton Standard does not dispute Beason’s argument that it was an error to employ the ADA’s definition of disability to decide a CFEPA claim. The company instead urges that the district court committed a separate error of law by recognizing a cause of action for perceived (or “regarded as”) disability discrimination, which, the company insists, is contemplated by the ADA, but not by the CFEPA. Our review of the district court’s grant of summary judgment is de novo. Zalewska v. County of Sullivan, 316 F.3d 314, 318 (2d Cir.2003). In the case at hand we must answer two questions: (1) whether the CFEPA definition of physical disability differs substantively from the ADA’s definition of disability, and (2) whether the CFEPA provides a cause of action for perceived physical disability discrimination. We take up each of these questions of Connecticut law and attempt to ascertain how Connecticut’s highest court would answer them, hindered in resolving them by the absence of any direct precedent from the Connecticut Supreme Court, the state’s highest court, but aided by several lower state court decisions. Sprint PCS L.P. v. Conn. Siting Council, 222 F.3d 113, 115-16 (2d Cir.2000) (finding that the question of whether Connecticut state law required a party to exhaust additional administrative remedies was “a quintessential question of statutory interpretation requiring de novo review” and a “prediction as to] how the forum state’s highest court would decide the issue[ ]”). Although the Connecticut Supreme Court has not directly considered the issues we address today, its precedent on statutory construction gives us considerable direction. The court, in its recent decision State v. Courchesne, 262 Conn. 537, 816 A.2d 562 (2003), clarified its approach to statutory interpretation. In so doing, it rejected what has come to be called the “plain meaning rule” and adopted instead a process that the court characterized as “a reasoned search for the intention of the legislature.”" }, { "docid": "2343405", "title": "", "text": "an examination of the plain text of the CFEPA, comparing it to the relevant text of the ADA. Under the CFEPA it is a prohibited practice for an employer — except in the case of a bona fide occupational qualification or need — to refuse to hire or employ or to discharge from employment an individual because of the individual’s physical disability. Conn. Gen.Stat. § 46a—60(a)(1). The CFEPA defines the term “[p]hysically disabled” as “refer[ring] to any individual who has any chronic physical handicap, infirmity or impairment.” Conn. Gen.Stat. § 46a-51(15) (emphasis added). The ADA also prohibits disability-based discrimination and similarly defines disability as “a physical or mental impairment.” But, significantly, it adds a requirement that the impairment “substantially limit[] one or more of the major life activities of [the] individual.” 42 U.S.C. § 12102(2)(A) (emphasis added). We have ruled that the ADA’s requirement that a physical disability substantially limit a major fife activity is “a significant threshold for seeking redress under the ADA.” Felix v. N.Y. City Transit Auth., 324 F.3d 102, 107 (2d Cir.2003). Absent similar language in the CFEPA, we believe the Connecticut Supreme Court would decline to find the CFEPA possesses the same restrictive threshold. Such view is consistent with both the Connecticut Supreme Court’s precedent that the most important factor to be considered when interpreting a statute is its language, see Courchesne, 262 Conn. at 577, 816 A.2d 562, and with its view that remedial statutes should be construed liberally, see Sullivan Assocs., 250 Conn. at 782, 739 A.2d 238. Our conclusion that Connecticut and federal laws do not provide coextensive disability discrimination coverage is bolstered by legislative history., The Connecticut General Assembly first made disability discrimination an unlawful employment practice in 1973 under the CFEPA. See An Act Concerning the Rights of the Blind and Otherwise Physically Disabled, 1973 Conn. Acts 503 (Reg. Sess.). The state legislature added a specific definition of physical disability to the statute the following year, see An Act Defining Physically Disabled, 1974 Conn. Acts 970 (Reg. Sess.), and then amended the definition again in 1975, so that the present" }, { "docid": "2343415", "title": "", "text": "physical disability discrimination, we do not believe it was part of the Connecticut legislature’s purpose that such a cause exist. B. Legislative History Another foray into the legislative history of the CFEPA provides substantiation for this view. First, as stated above in Section II, the Rehabilitation Act’s definition of a handicapped individual — the precursor to the modern ADA definition of disability — was approved by Congress in 1974, one year before Connecticut enacted the CFEPA definition of physical disability that, in substance, has survived until this day. Significantly, the Rehabilitation Act’s definition, which originated the federal requirement that an impairment substantially limit a major life activity in order to qualify as a disability, also amended the Act to extend its protections to individuals “regarded as having” such a substantially limiting impairment. See Rehabilitation Act Amendments of 1974, Pub.L. No. 93-651, § 111, 89 Stat. 2-3, 2-5 (1974). Consistent with the notion that the Connecticut General Assembly, if it had wanted to do so, could have adopted the Rehabilitation Act’s “substantially limit a major life activity” language, we similarly think that the Connecticut legislature — had that been its purpose — could have expressly adopted a cause of action for perceived physical disability discrimination. The absence of any reference to such a claim in the CFEPA strongly suggests that the present difference between Connecticut and federal law with respect to “regarded as” physical disability discrimination “was purposeful and is meaningful.” Evening Sentinel, 168 Conn. at 34-35 n. 5, 357 A.2d 498. A second indication of legislative aim may be derived from the observation that, despite the absence of “regarded as” language from the CFEPA definition of physical disability, the Connecticut legislature has, in at least two instances, otherwise chosen to employ equivalent language in the state’s anti-discrimination statutes. In 1991, for instance, the General Assembly approved a statute that prohibits certain kinds of discrimination against people because of their sexual orientation. See Conn. Gen.Stat. §§ 46a-81a—46a-81r. In using the term sexual orientation, the legislature defined it broadly as “having a preference for heterosexuality, homosexuality or bisexuality, having a history of" }, { "docid": "6974921", "title": "", "text": "relief under the ADA. Accordingly, Plaintiffs ADA claims will be dismissed without prejudice. The Court grants Plaintiff leave to amend her complaint, if she can, to allege how her transverse myelitis substantially limited a major life activity and to clarify whether she is asserting a claim for disability discrimination arising from a failure to make a reasonable accommodation, a claim for discrimination arising from an adverse employment action taken because of her dis-' ability or both. C. CFEPA CLAIMS In counts four and five, Plaintiff asserts two claims under the Connecticut Fair Employment Practices Act (“CFEPA”) alleging that Defendants violated both Section 46a-60(a)(l) and Section 46a-60(a)(7). 1. Section 46a-60(a)(l) Claim Defendants argue that Plaintiffs 46a-60(a)(1) CFEPA claim should be dismissed because the Plaintiff “fails to allege which protected class under which she is claiming a violation and again, how she was discriminated against.” [Dkt. # 15, p. 9]. Section 46a-60(a)(1) provides that it shall be a discriminatory practice to “to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s ... present or past history of ... physical disability.” Conn. Gen. Stat. § 46a-60(a)(l). The standards governing discrimination under CFEPA are the same as those governing ADA claims. See Craine v. Trinity College, 259 Conn. 625, 637 n. 6, 791 A.2d 518 (2002) (“We look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both.”). While Connecticut courts apply the same standards under the ADA to analyze CFE-PA disability claims, Connecticut courts have interpreted CFEPA’s definition of “disability” to be “broader than the ADA or the ADAAA, because it covers ‘chronic’ impairments even if not permanent.” Hutchinson, 2011 WL 4542957, at *9. In addition, CFEPA does not require that the chronic impairment “substantially limit” a major life activity. Grunberg v. Quest Diagnostics, Inc., No. 3:05-cv-1201, 2008 WL 323940, at *4 n. 2 (D.Conn. Feb. 5, 2008). “CFEPA ... provides that ‘[p]hysically disabled’ refers to any individual" }, { "docid": "2343396", "title": "", "text": "Connecticut Commission determined there was reasonable cause to believe that Hamilton Standard, by failing to recall Beason to work, discriminated against him in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Connecticut Fair Employment Practices Act (CFEPA), Conn. Gen.Stat. § 46a-51 et seq. Subsequently, plaintiff filed a complaint in district court asserting that Hamilton Standard had incorrectly perceived him as disabled and discriminated against him as a disabled person in violation of the ADA and the CFEPA. The company initially moved for judgment on the pleadings, urging that plaintiffs complaint be dismissed because discrimination claims under the collective bargaining agreement are subject to arbitration, and that his claim was barred by the prior decision of the arbitrator denying his grievance. In an opinion dated February 10, 1999, the district court denied Hamilton Standard’s motion. Beason v. United Techs. Corp., 37 F.Supp.2d 127, 128 (D.Conn.1999). It reasoned that because plaintiffs claims are statutory, not contractual, they are not subject to arbitration. Id. at 129-30. The company then moved for summary judgment, which was granted by Judge Droney in an opinion dated March 15, 2002, disposing of all of plaintiffs claims. Beason v. United Techs. Corp., 213 F.Supp.2d 103, 116 (D.Conn.2002). Ruling against Beason, the district court held that a reasonable juror could find that Hamilton Standard regarded him as suffering from a physical impairment, but concluded he had not established that the company regarded him as having a physical impairment that substantially limits a major life activity, as required by the ADA. See id. at 109, 114. After observing that Connecticut courts look to federal law for guidance on the enforcement of state anti-discrimination statutes, the district court dismissed plaintiffs CFEPA claim for the same reasons it had dismissed his federal cause of action. See id. at 115-16. A motion for reconsideration was denied on April 23, 2002. This appeal ensued. Before turning to the merits, we dispose of a jurisdictional question raised by Hamilton Standard. 'It notes that while plaintiff filed a notice of appeal following the district court’s grant of summary" }, { "docid": "17497106", "title": "", "text": "workplace injury. Doc. #34-9 at 3. Nonetheless, these post-injury notes from his physicians describing a history of back impairment and chronic pain are sufficient, when read in the light most favorable to plaintiff, to allow a reasonable jury to conclude that he was disabled within the meaning of the ADA. CFEPA provides that a person is disabled if he has “any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness.” Conn. Gen. Stat. § 46a-51(15). Because this definition does not include the requirement that a major life activity be substantially limited, it is generally regarded as broader in scope than the ADA’s definition of disability. See, e.g., DeAngelo, 105 F.Supp.3d at 180. Defendant argues that plaintiff cannot meet this definition nonetheless because he has not demonstrated that his alleged impairment is “chronic.” Doc. #27-1 at 22-23. But plaintiff has submitted evidence of more than a decade of intermittent pain related to a spinal injury and subsequent surgeries. Connecticut state courts have found chronic pain resulting from surgery to be a chronic infirmity or impairment under CFEPA. See Gaillard v. Southwestern Connecticut Agency on Aging, Inc., 2014 WL 6804875 at *4 (Conn. Super. 2014); see also Fasulo v. HHC Physicianscare, 2016 WL 3266434 at *6 (Conn. Super. 2016). A reasonable jury could find plaintiffs impairment to be chronic for purposes of CFEPA, and so the issue of plaintiffs disability is not appropriate for me to resolve on a motion for summary judgment. B. Whether plaintiff was qualified to perform the essential functions of his job Although plaintiff does not dispute that he was unable to perform his job on the date that he was terminated, plaintiff argues that he would have been able to perform his job if he had been granted a reasonable accommodation in the form of additional leave from his employment to recover from his injury. The Second Circuit has “never resolved the question of whether paid or unpaid leave can constitute a reasonable accommodation under the ADA.” Petrone v. Hampton Bays Union Free School Dist., 568" }, { "docid": "13240752", "title": "", "text": "filed on February 10, 2011, only those discrete acts of discrimination occurring on or after August 14, 2010, are actionable. The only act that Plaintiff alleges is Defendant’s failure to reinstate her. As discussed above, while evidence of actions prior to this event can be admitted as background evi dence, the only acts of discrimination as to which Plaintiff can seek any recovery are those occurring after August 14, 2010. While CFEPA and the ADA are not identical, Connecticut courts apply the same standards to analyze CFEPA disability claims as are applied to ADA disability claims. Wanamaker, 899 F.Supp.2d at 212 (noting that CFEPA has a broader definition of disability than the ADA). For the same reasons as set forth above with respect to Plaintiffs claims under the ADA, the Court finds genuine issues of material fact that preclude the grant of summary judgment in favor of Defendant. B. Violation of Conn. Gen.Stat. § i6a-60(a)(7) for Pregnancy Discrimination Count V of Plaintiffs Amended Complaint asserts a state-law claim for pregnancy discrimination under CFEPA, Conn. Gen.Stat. § 46a-60(a)(7). Plaintiff claims that Defendant refused to grant her a reasonable leave of absence of disability resulting from her pregnancy and refused to reinstate her to her original job or to an equivalent position with equivalent pay, accumulated seniority, retirement, fringe benefits, and other service credits when she indicated her intent to return to work in August 2009. Subsection 7 of Connecticut’s Fair Employment Practices Act provides that it is a discriminatory practice for an employer “(A) [t]o terminate a woman’s employment because of her pregnancy; (B) to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy;.... (D) to fail or refuse to reinstate the employee to her original job or to an equivalent position ... upon her signifying her intent to return....” Conn. Gen-Stat. § 46a-60(a)(7). As Judge Bryant discussed in her ruling on Defendant’s motion to dismiss, while there is a paucity of caselaw interpreting this section, it is clear that the refusal to reinstate a pregnant employee to her original job or an" }, { "docid": "2343407", "title": "", "text": "definition of physical disability has been in force, unchanged save for a minor technical adjustment, since 1975. See An Act Defining Physically Disabled, 1975 Conn. Acts 330 (Reg. Sess.); An Act Implementing a Technical Revision of the Statutes Concerning Human Rights and Opportunities, 1980 Conn. Acts 586 (Reg. Sess.). The ADA was not enacted until 1990, see Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (1990), but its definition of disability borrows heavily from a definition contained in the Rehabilitation Act, see Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (1973) (codified as amended at 29 U.S.C. § 701 et seq.), which was enacted by Congress in 1973 and amended in 1974 to define a “handicapped individual” as a person who has “a physical or mental impairment which substantially limits one or more of such person’s major life activities.” Rehabilitation Act Amendments of 1974, Pub. L. No. 93-651, § 111(a), 89 Stat. 2-3, 2-5 (1974) (emphasis added). Given that the definition of disability used by the ADA essentially pre-dates the definition of physical disability promulgated by the Connecticut General Assembly for the CFEPA, the General Assembly, had it wished to do so, could have adopted the ADA definition. The fact that the General Assembly chose not to adopt that language readily supports an inference that the Connecticut legislature appreciated the scope of the ADA definition and intended the CFEPA definition to be different. See Evening Sentinel, 168 Conn. at 34-35 n. 5, 357 A.2d 498. Moreover, the case law on point, although not extensive, uniformly confirms our belief that the CFEPA’s definition of physical disability is broader than the ADA’s. For example, in Shaw v. Greenwich Anesthesiology Assocs., P.C., 137 F.Supp.2d 48 (D.Conn.2001), the district court dismissed a plaintiffs ADA claim on summary judgment finding that her arthritis did not substantially limit a major life activity, see id at 54, but refused to grant summary judgment with respect to the plaintiffs CFEPA claim, ruling that “[t]o be ‘disabled’ under Connecticut law is different from being ‘disabled’ under the ADA.” Id at 65." }, { "docid": "2343413", "title": "", "text": "It shall be a discriminatory practice in violation of this section: For an employer, by the employer or the employer’s agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, .age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental .retardation, learning disability or physical disability, including, but not limited to, blindness. Conn. Gen.Stat. § 46a-60(a)(1). Because the statute makes no mention of prohibiting discrimination on the basis of an individual’s perceived physical disability, focus shifts to the statutory definition of physical disability, to assess whether that definition contemplates protecting individuals who are perceived to be — but are not actually — disabled. The CFEPA definition of physical disability, in its entirety, states “Physically disabled” refers to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device. Conn. Gen.Stat. § 46a-51(15). Thus, the statute defines “[p]hysically disabled” only by using the active verb “has.” Conspicuously absent from this definition is any mention of the perception of a physical disability. This absence stands in stark contrast to the definition of disability employed by the ADA. The federal statute provides that the term disability “means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2) (emphasis added); see also 29 U.S.C. § 705(20)(B) (similarly defining “individual with a disability” for the Rehabilitation Act). Because the specific language of CFEPA makes no mention of a cause of action for “perceived” or “regarded as”" }, { "docid": "6974922", "title": "", "text": "or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s ... present or past history of ... physical disability.” Conn. Gen. Stat. § 46a-60(a)(l). The standards governing discrimination under CFEPA are the same as those governing ADA claims. See Craine v. Trinity College, 259 Conn. 625, 637 n. 6, 791 A.2d 518 (2002) (“We look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both.”). While Connecticut courts apply the same standards under the ADA to analyze CFE-PA disability claims, Connecticut courts have interpreted CFEPA’s definition of “disability” to be “broader than the ADA or the ADAAA, because it covers ‘chronic’ impairments even if not permanent.” Hutchinson, 2011 WL 4542957, at *9. In addition, CFEPA does not require that the chronic impairment “substantially limit” a major life activity. Grunberg v. Quest Diagnostics, Inc., No. 3:05-cv-1201, 2008 WL 323940, at *4 n. 2 (D.Conn. Feb. 5, 2008). “CFEPA ... provides that ‘[p]hysically disabled’ refers to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness.... The statute does not define ‘chronic,’ but courts have defined it as ‘marked by long duration or frequent recurrence’ or ‘always present or encountered.’ ... With reference to diseases, the term ‘chronic’ has been defined to mean ‘of long duration, or characterized by slowly progressive symptoms; deep-seated or obstinate, or threatening a long continuance; distinguished from acute.’ ” Logan v. SecTek, Inc., 632 F.Supp.2d 179, 184 (D.Conn.2009) (quoting Conn. Gen. Stat. § 46a-51(15)). Here, Plaintiffs CFEPA claim fails for a similar reason as her ADA claim. Plaintiff only alleges that she suffers from transverse myelitis and has pled no other facts indicating that this condition is “chronic” within the meaning of CFEPA. Such an allegation is a naked assertion devoid of further factual enhancement that fails state a plausible claim for a Section 46a-60(a)(1) CFEPA violation. See Setkoski v. Bauer, No. HHDCV116023082, 2012 WL 2044805, at *3 (Conn.Super.Ct. May 10, 2012) (holding" } ]

[ { "docid": "4543416", "title": "", "text": "cited by the Debtors acknowledge that such methods exist. In each instance, the method most commonly employed is to determine the value of the life estate by reference to actuarial tables. The Debtors have offered no compelling reason why “using appropriate tables promulgated by the Internal Revenue Service” would not accurately value their life estate interests. In any event, valuation is not the issue presently before me. For today, it is enough to say that the value of the Debtors’ life estates is ascertainable and that the Trustee’s intention to use such tables to determine that value is reasonable. Next, I must flesh out the contours of the Homestead’s protection. Mass. Gen. Laws ch. 188, § 2 provides in relevant part: The estate of homestead of each owner who is an elderly or disabled person, regardless of marital status, shall be protected under this section against attachment, seizure, execution on judgment, levy and sale for payment of debts and legacies, except as provided in subsection (b) of section 3, to the extent of the declared homestead exemption .... A “declared homestead exemption” is defined, subject to certain exceptions not relevant here, as “an exemption in the amount of $500,000 created by a written declaration, executed and recorded pursuant to section 5....” On Schedule C, the Debtors claimed an exemption in the amount of $500,000. At this stage, it is established that the Homestead protects their interest in their life estates to that amount, but does it protect more than that? The Debtors argue is that the Homestead is a possessory exemption, allowing them remain in their family home for the duration of their lives, but as is evident from the language quoted above, Mass. Gen. Laws ch. 188 only protects the owner’s interest in the home to the extent of the monetary exemption. Given this unambiguous language, there is simply no room to construe the statute in the way the Debtors urge. Therefore, so long as the available monetary exemption is greater than or equal to the value of that property, the owner’s possessory and pecuniary interests are both fully" } ]

[ { "docid": "19757402", "title": "", "text": "homestead exemption, which provides as follows: An estate of homestead to the extent of $500,000 in the land and buildings may be acquired pursuant to this chapter by an owner or owners of a home or one or all who rightfully possess the premise by lease or otherwise and who occupy or intend to occupy said home as a principal residence. Said estate shall be exempt from the laws of conveyance, descent, devise, attachment, levy on execution and sale for payment of debts or legacies except [in certain listed exceptions]. Mass. Gen. Laws ch. 188, § 1. . In pertinent part, this section provides: [T]he debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (A) a judicial lien, other than a judicial lien that secures a debt of a kind that is specified in section 523(a)(5) [for a domestic support obligation.] 11 U.S.C. § 522(f)(1). . Although the parties cite some competing authorities, they agree that no Massachusetts court has yet ruled squarely on this issue. . While Massachusetts courts have not ruled on this issue, the parties cite cases suggesting that states that extend homestead exemption to sale proceeds often limit that extension to involuntary sales. Compare, e.g., In re Miller, 246 B.R. 564, 566 (Bankr.E.D.Tenn.2000) (explaining that the homestead exemption under Tennessee law extends to sale proceeds of an involuntary conversion of property), with In re Englander, 95 F.3d 1028, 1032 (11th Cir.1996) (noting that Florida law extends homestead exemption to proceeds of a voluntary sale if reinvestment in a new homestead is intended). . As we have noted, the district court ruled against Hyde because the restitution order resulting from the criminal case “creates an entirely new obligation owed to the United States unaffected by the Debtor's homestead exemption and 11 U.S.C. § 522(c).” By choosing to base our ruling on the scope of the MVRA rather than the ground relied on by" }, { "docid": "7656329", "title": "", "text": "his Section 1A exemption. In the District of Massachusetts, a debtor may exempt property from the bankruptcy estate under federal law, i.e., 11 U.S.C. § 522(d), or may elect the exemptions available under state law. See 11 U.S.C. § 522(b)(1); In re Leicht, 222 B.R. 670, 672 (1st Cir. BAP 1998). Section 522 provides that “an individual debtor may exempt from property of the estate ... any property that is exempt under ... State or local law.” 11 U.S.C. § 522(b)(2)(A). The purpose of the section is to give states the opportunity to substitute their own judgment for that of Congress in deciding the exemptions to afford its residents. See In re Geise, 992 F.2d 651, 658 (7th Cir.1993). Massachusetts law has established two homestead exemptions: Section 1 and Section 1A. See Masidlover, 429 Mass, at 52, 705 N.E.2d at 1138. Under Massachusetts law, a claimant must file a declaration of homestead as the homestead is not an automatic right. See In re Messia, 184 B.R. 176, 177 (Bankr.D.Mass.1995). In this case, the Debtor chose the state exemptions. According to G.L. c. 188, § 1, An estate of homestead to the extent of $300,000 in the land and buildings may be acquired pursuant to this chapter by an owner or owners of a home or one or all who rightfully possess the premise by lease or otherwise and who occupy or intend to occupy said home as a principal residence .... G.L. c. 188, § 1. Section 1 further provides: For the purposes of this chapter, an owner of a home shall include a sole owner, joint tenant, tenant by the entirety or tenant in common; provided, that only one owner may acquire an estate of homestead in any such home for the benefit of his family; and provided further, that an estate of homestead may be acquired on only one principal residence for the benefit of a family. For the purposes of this chapter, the word ‘family* shall include either a parent and child or children, a husband and wife and their children, if any, or a sole owner." }, { "docid": "11710111", "title": "", "text": "August 9, 2000, Garran recorded a declaration of homestead on the Hingham property as a disabled person pursuant to Mass. Gen. Laws ch. 188, § 1A. .Judith Garran later recorded a declaration of homestead on the same property pursuant to Mass. Gen. Laws ch. 188, § 1. On April 2, 2001, Garran filed a Chapter 7 petition for bankruptcy. In Schedule A (Real Property) of his petition, he listed the Hingham property as having a value of $560,000. In Schedule C (Property Claimed as Exempt), Garran listed two homestead exemptions under Massachusetts state law — his § 1A exemption for $300,000 and his wife’s § 1 exemption for $300,000 — thereby seeking a total exemption of $600,000 on the Hingham property. Citizens filed an Objection to the Debt- or’s Claim of Exemption, arguing that Gar-ran could claim only one of the state law homestead exemptions. Garran filed a motion under 11 U.S.C. § 522(f) (2003) seeking to avoid Citizens’ judicial lien, claiming that it impaired his exemption in property. Citizens objected to the motion. The bankruptcy court ruled that Garran could claim only the later filed homestead exemption of his wife, thereby limiting him to a $300,000 homestead exemption. In re Garran, 274 B.R. 570, 575 (Bkrtey.D.Mass. 2002). Concluding that Citizens’ judicial lien did not impair this $300,000 exemption, the court denied Garran’s motion to avoid the lien. Id. at 576. On appeal, the district court affirmed. Garran v. Citizens Bank of Mass. (In re Garran), 280 B.R. 292, 293-94 (Bkrtcy.D.Mass.2002). Garran now appeals. n. We review the decision of the bankruptcy court directly, affording de novo review to the court’s resolution of the legal question presented. Rutanen v. Baylis (In re Baylis), 313 F.3d 9, 16 (1st Cir. 2002). A debtor is permitted to exempt a limited amount of certain property from the bankruptcy estate pursuant to 11 U.S.C. § 522(b) (2003) to protect those types of assets from creditors. As part of the bankruptcy petition, a debtor must file a list of property claimed as exempt. 11 U.S.C. § 522(0; Bank. R. 4003(a). In Massachusetts, a debtor can" }, { "docid": "21523038", "title": "", "text": "was voluntary. 11 U.S.C. § 522(g); see In re Guido, 344 B.R. at 197. Any other conclusion would defeat the purpose of § 551, by allowing a debtor, after the trustee avoided a voluntary conveyance, to exempt property and gain the equity for himself. See In re Wegner, 210 B.R. at 802 (a voluntary conveyance of mortgage by the debtor, but subsequently recovered by the trustee under § 551, could not be exempted). As the Trustee correctly noted during oral argument, if the Debtor’s homestead exemption were given priority over the estate’s interest in the property, general creditors would receive nothing. This would be an illogical result, considering that outside of bankruptcy, as between the mortgagee and mortgagor, American’s unrecorded mortgage would have been satisfied before the Debtor could have received any funds. Additionally, the Massachusetts homestead statute provides that when property is subject to a mortgage that was executed before a declaration of homestead was filed, the claim of homestead is not effective as against the mortgagee. Mass. Gen. Laws. ch. 188, § 6 (1986); In re Guido, 344 B.R. at 198. Since American’s mortgage was executed prior to the Debtor filing his declaration of homestead, the homestead claim is not effective as against either American or the Trustee standing in the shoes of American. Finally, even if the homestead declaration were filed prior to the date of the mortgage, the mortgage itself provides that any claim of prior homestead is waived. For all of the foregoing reasons, we agree with the bankruptcy court’s conclusions and rulings herein. Accordingly, the bankruptcy court’s orders are hereby AFFIRMED, and the appeal is DENIED. . The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or to any creditor, the rights and powers of ... or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by- (3) a bona fide purchaser of real property ... from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status" }, { "docid": "4357824", "title": "", "text": "the protections afforded Cunningham because he is a dishonest debtor, Pasquina is effectively asking us to rewrite § 522(c). We cannot do that. III. For the foregoing reasons, we affirm the district court’s judgement that the post-petition sale of Cunningham’s home, for which he had obtained a homestead exemption under the law of Massachusetts, did not cause the proceeds of the sale to lose their exempt status under the Bankruptcy Code and become subject to Pas-quina’s pre-petition nondischargeable debt. So ordered. . The court adjusted its judgement on April 1, 2003 to account for the revenue that Cunningham had subsequently received from cases that originated with Pasquina. The final judgment was $291,554.55 with the accumulation of interest. . In 2004, the homestead protection increased from $300,000 to $500,000. See 2004 Mass. Legis. Serv. ch. 218. Since Cunningham filed for bankruptcy prior to the increase, his homestead exemption is limited to $300,000. . As our chronology indicates, Pasquina obtained the superior court judgment against Cunningham prior to Cunningham's filing of the declaration of homestead. The Massachusetts Homestead Act contains an exception for \"a debt contracted prior to the acquisition of said estate of homestead.” However, we ruled in In re Weinstein that the Massachusetts prior debt exception is pre-empted by the Bankruptcy Code. 164 F.3d 677, 682 (1st Cir.1999). Understandably, Pasquina does not invoke the Massachusetts prior contracted debt exception in his arguments here. . While a debtor can typically avoid the fixing of a judicial lien on his interest in exempt property, he cannot avoid the fixing of a judicial lien for domestic support obligations. 11 U.S.C. § 522(f)(1)(A). . Cunningham stated in this motion that the Johnson Street property was appraised at $495,000 and was subject to $260,000 in outstanding mortgages. Therefore, absent the lien, his equity interest in the property would be less than $235,000, all of which would be eligible for the homestead exemption. . For these reasons, the bankruptcy court deemed Pasquina’s objections to be frivolous and sanctioned him for filing them. Pasquina did not appeal this decision. . Section 523(a) provides that certain types of" }, { "docid": "11710113", "title": "", "text": "choose between the federal exemptions — those listed in § 522(d) — or the exemptions enumerated in state law. Patriot Portfolio v. Weinstein (In re Weinstein), 164 F.3d 677, 679 (1st Cir.1999); see also § 522(b)(2)(A) (permitting a debtor to select either federal or state exemptions). Garran chose the state exemptions. Along with exemptions for certain types of personal property, Massachusetts law has established two homestead exemptions. Under § 1 of the Homestead Act, any owner of a home may acquire “[a]n estate of homestead to the extent of $300,000 in the land and buildings.” Mass. Gen. Laws Ann. ch. 188, § 1. Entitlement to a homestead exemption is not automatic under Massachusetts law. An owner of property must file the necessary declaration of homestead before the exemption can be claimed. Id. § 2. Garran’s wife filed the necessary declaration of homestead as an owner of the Hingham property. Only one member of a family is permitted to file a declaration under § 1, and the filing of any member of a family protects the entire family. Id. § 1. The other type of homestead exemption is available only to the elderly and disabled. According to § 1A, “[t]he real property or manufactured home of ... a disabled person, as herein defined, shall be protected against attachment, seizure or execution of judgment to the extent of $300,000.” Garran filed the necessary declaration of homestead under § 1A. A declaration of homestead under this section is available only to individuals; a declaration filed by one member of a family will not protect the non-filing members of that family. The parties do not dispute Gar-ran’s disability status. Once property is exempted under § 522(b), it is immunized from creditors while the outstanding debts are being discharged in bankruptcy. See Owen v. Owen, 500 U.S. 305, 308, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991) (explaining the concept of exemptions). A bankruptcy discharge, though, voids only those judgments “to the extent that such judgment is a determination of the personal liability of the debtor.” 11 U.S.C. § 524(a)(1). Since a judicial lien attached to" }, { "docid": "19147375", "title": "", "text": "Gen. Laws ch. 188, § 1. The debtor’s declared homestead exemption is insulated from conveyance, sale, or levy to help satisfy the debtor’s debts in bankruptcy, with the exception of (as relevant here) a debt secured by a lien on the property, such as a mortgage. Mass. Gen. Laws ch. 188, § 3(b); In re Swift, 458 B.R. 8, 15 (Bankr.D.Mass.2011) (“[A] debtor’s homestead exemption is not effective against a mortgagee where the mortgage in question was executed before the debtor recorded a declaration of homestead.”). The final working of the scheme is that, when a debtor declares a property as her homestead, proceeds realized from the sale of that property must be used- first to pay off any secured claims and subsequently to satisfy the debtor’s claimed exemption before, at last, being turned over to her bankruptcy estate. A core power of a bankruptcy trustee under § 363(b) of the Code is the right to sell “property of the estate” for the benefit of a debtor’s creditors. 11 U.S.C. § 363(b)(1) (“The trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate.... ”). Because a debtor’s exempted property interests are effectively removed from the estate, however, see Owen v. Owen, 500 U.S. 305, 308, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991), § 363 does not empower the trustee to sell exempted interests. In re Carmichael, 439 B.R. 884, 890 (Bankr.D.Kan.2010) (“[W]here the debtor’s interest is exempted, the estate no longer has an interest that it may sell.” (quoting Collier on Bankruptcy ¶ 363.08[3] (16th ed.2012))); see also In re Parker, 142 B.R. 327, 330 (Bankr.W.D.Ark.1992) (“The trustee abandons property of the estate in a chapter 7 case usually because there is no equity in the property or the property is exempt.”). Nor does a bankruptcy trustee ordinarily sell property solely for the benefit of secured creditors. See In re Scimeca Found., Inc., 497 B.R. 753, 781 (Bankr.E.D.Pa.2013) (“[A] bankruptcy trustee should not liquidate fully encumbered assets, for such action yields no benefit to unsecured creditors.”); Collier" }, { "docid": "4357813", "title": "", "text": "During the course of Pas-quina’s negotiations with Pierce, Cunningham misled both Pasquina and Pierce into believing that he would join Pierce. Instead, Cunningham secretly removed clients’ files from Pasquina’s records, covertly opened his own practice, and continued to represent Pasquina’s former clients without paying Pasquina his share of the earned legal fees or reimbursing him for the expenses he had advanced the clients. In response to Pasquina’s lawsuit, the Massachusetts Superior Court entered its-initial judgement of $191,072.30 on June 20, 2001, having found that Cunningham breached his fiduciary duties to Pasquina during the period after the accident. In November 2001, by filing a Declaration of Homestead with the Commonwealth of Massachusetts Registry of Deeds, Cunningham designated his residence at 795 Johnson Street in North And-over, Massachusetts as his homestead. Once property is properly claimed as a homestead pursuant to the Massachusetts Homestead Act, it is shielded from most of an owner’s creditors: An estate of homestead to the extent of $800,000 in the land and buildings may be acquired pursuant to this chapter by an owner or owners of a home or one or all who rightfully possess the premise by lease or otherwise and who occupy or intend to occupy said home as a principal residence. Said estate shall be exempt from the laws of conveyance, descent, devise, attachment, levy on execution and sale for payment of debts or legacies except [in certain listed exceptions]. Mass. Gen. Laws ch. 188, § l. Soon after Cunningham’s declaration of homestead, Pasquina attempted to collect upon his superior court judgment on December 12, 2002 by obtaining a $250,000 writ of attachment against the Johnson Street property. On February 28, 2008, Cunningham filed for bankruptcy under Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 701 et. seq., and claimed in the bankruptcy proceedings a $300,000 homestead exemption on the Johnson Street property pursuant to 11 U.S.C. § 522(b). He also disclosed Pas-quina’s lien on the residence. Under 11 U.S.C. § 522(f) a debtor can avoid the fixing of a judicial lien on property that is exempted from the bankruptcy estate. Therefore, before" }, { "docid": "21523037", "title": "", "text": "also argues here that the result of the stipulation between the Trustee, American, and Ameriquest was to transform American’s status to that of an unsecured creditor, and that the Trustee was able to preserve for the estate only American’s unsecured claim, which is subordinate to the Massachusetts homestead exemption. This argument fails for several reasons: First, the Trustee’s successful avoidance of the mortgage does not render her an unsecured creditor. See id. American’s amended proof of claim as an unsecured creditor is irrelevant for these purposes, and by avoiding the transfer and preserving the mortgage for the benefit of the estate under § 551, the Trustee clearly assumed American’s former position as a secured creditor. See id. Second, “the only way for a debtor to claim an exemption in property that has been preserved for the benefit of the estate is through § 522(g) of the Code.” Id. As previously noted, under § 522(g), the debtor does not have an exemption right as to property preserved for the estate under § 551, when the transfer was voluntary. 11 U.S.C. § 522(g); see In re Guido, 344 B.R. at 197. Any other conclusion would defeat the purpose of § 551, by allowing a debtor, after the trustee avoided a voluntary conveyance, to exempt property and gain the equity for himself. See In re Wegner, 210 B.R. at 802 (a voluntary conveyance of mortgage by the debtor, but subsequently recovered by the trustee under § 551, could not be exempted). As the Trustee correctly noted during oral argument, if the Debtor’s homestead exemption were given priority over the estate’s interest in the property, general creditors would receive nothing. This would be an illogical result, considering that outside of bankruptcy, as between the mortgagee and mortgagor, American’s unrecorded mortgage would have been satisfied before the Debtor could have received any funds. Additionally, the Massachusetts homestead statute provides that when property is subject to a mortgage that was executed before a declaration of homestead was filed, the claim of homestead is not effective as against the mortgagee. Mass. Gen. Laws. ch. 188, § 6" }, { "docid": "19031285", "title": "", "text": "designed to divest the debtor of his interest in the Property and place that interest beyond the reach of his creditors. The second transfer — the re-conveyance — was curative, not fraudulent. The ensuing declaration of homestead was, therefore, unexceptionable. We need go no further. We hold that 11 U.S.C. § 522(g) does not authorize the bankruptcy court to deny a debtor’s homestead exemption with respect to property that had been fraudulently transferred and then voluntarily reconveyed pre-petition, even though the retransfer came about through the efforts of a creditor. Consequently, we uphold the BAP’s decision reversing the bankruptcy court’s contrary order. Affirmed. . Massachusetts law requires that “an estate of homestead in real property” be recorded either as part of the deed of conveyance or in a subsequent writing \"duly signed, sealed and acknowledged and recorded.” Mass. Gen. Laws ch. 188, § 2. The rights emanating from a declaration of homestead are delineated in a separate subsection. See id. § 1. No Massachusetts homestead exemption may be claimed pursuant to 11 U.S.C. § 522(b)(3) unless a declaration has been duly filed and recorded in compliance with state law. See In re Garran, 338 F.3d 1, 4-5 (1st Cir.2003). . This appeal concerns only the dispute over the claimed homestead exemption. Details concerning Stornawaye’s objection to a discharge are supplied only for context. . Stornawaye does not contest that the exemption, if available at all, is capped at $500,000. . The bankruptcy court also mentioned In re Snyder, 108 B.R. 150 (Bankr.N.D.Ohio 1989). Snyder is of little utility. That decision merely states, in surveying the case law, that section 522(g) can apply to actions by creditors. See id. at 153-54. As the sole authority for this proposition, Snyder cites Carpenter. See id. . In legal parlance, \"recover” sometimes means \"[t]o obtain by a judgment.” Black’s Law Diet. 1302 (8th ed.2004). Even when used in this sense (a usage that we do not endorse in the present context), the word does not permit the reading that Stornawaye promotes. . There is a limited set of circumstances, in Chapter 11 cases, in" }, { "docid": "4357814", "title": "", "text": "owner or owners of a home or one or all who rightfully possess the premise by lease or otherwise and who occupy or intend to occupy said home as a principal residence. Said estate shall be exempt from the laws of conveyance, descent, devise, attachment, levy on execution and sale for payment of debts or legacies except [in certain listed exceptions]. Mass. Gen. Laws ch. 188, § l. Soon after Cunningham’s declaration of homestead, Pasquina attempted to collect upon his superior court judgment on December 12, 2002 by obtaining a $250,000 writ of attachment against the Johnson Street property. On February 28, 2008, Cunningham filed for bankruptcy under Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 701 et. seq., and claimed in the bankruptcy proceedings a $300,000 homestead exemption on the Johnson Street property pursuant to 11 U.S.C. § 522(b). He also disclosed Pas-quina’s lien on the residence. Under 11 U.S.C. § 522(f) a debtor can avoid the fixing of a judicial lien on property that is exempted from the bankruptcy estate. Therefore, before the bankruptcy court, Cunningham moved pursuant to § 522® for an order avoiding Pasquina’s $250,000 writ of attachment. On February 4, 2004, Pasquina filed an objection to Cunningham’s motion to avoid the writ of attachment and Cunningham’s claim of a homestead exemption. The bankruptcy court denied Pasquina’s objections both on the merits and because the objections were time-barred, thereby al lowing Cunningham to avoid the lien on the Johnson Street property. Subsequently, Pasquina filed a timely motion in the bankruptcy court requesting that the court determine that Cunningham’s debt to him was nondischargeable. In July 2005, the court found that the debt should not be discharged because Cunningham acted fraudulently while in a fiduciary capacity, see 11 U.S.C. § 523(a)(4), and because Cunningham caused willful and malicious financial injury to Pasquina, see 11 U.S.C. § 523(a)(6). On September 20, 2005, the bankruptcy court closed its adversary proceedings. Meanwhile, Pasquina learned that Cunningham had listed his Johnson Street property for sale. On August 18, 2005, Pasquina filed a motion in the Massachusetts Superior Court arguing that" }, { "docid": "7656328", "title": "", "text": "claim of a $600,000 exemption on the ground that the Debtor is not entitled to assert both his exemption and that of his non-debtor spouse. Citizens maintained that only one owner may acquire an estate of homestead and that the Debtor’s spouse may not assert an exemption in the subject property pursuant to 11 U.S.C. § 522(i) as the Debtor has claimed his own exemption. In its Objection to the Lien Avoidance Motion, Citizens reiterated its position that the Debtor is only entitled to the benefit of one exemption, and, therefore, he did not correctly apply the formula under § 522(f)(2)(A) as required by MLBR 4003-1(b). Thus, in its view, its judicial lien is not avoidable. III. ANALYSIS A. “Stacking” The threshold issue presented is whether the Debtor is entitled to claim the benefit of both his exemption filed under G.L. c. 188, § 1A and his non-debtor spouse’s exemption filed under G.L. c. 188, § 1. In colloquial terms, the issue is whether the Debtor can “stack” his wife’s subsequent Section 1 exemption onto his Section 1A exemption. In the District of Massachusetts, a debtor may exempt property from the bankruptcy estate under federal law, i.e., 11 U.S.C. § 522(d), or may elect the exemptions available under state law. See 11 U.S.C. § 522(b)(1); In re Leicht, 222 B.R. 670, 672 (1st Cir. BAP 1998). Section 522 provides that “an individual debtor may exempt from property of the estate ... any property that is exempt under ... State or local law.” 11 U.S.C. § 522(b)(2)(A). The purpose of the section is to give states the opportunity to substitute their own judgment for that of Congress in deciding the exemptions to afford its residents. See In re Geise, 992 F.2d 651, 658 (7th Cir.1993). Massachusetts law has established two homestead exemptions: Section 1 and Section 1A. See Masidlover, 429 Mass, at 52, 705 N.E.2d at 1138. Under Massachusetts law, a claimant must file a declaration of homestead as the homestead is not an automatic right. See In re Messia, 184 B.R. 176, 177 (Bankr.D.Mass.1995). In this case, the Debtor chose" }, { "docid": "3684434", "title": "", "text": "the Debt- or’s interest in the Property through mesne process. Premier prevailed against the Debtor and subsequently obtained a writ of execution on the judgment in the amount of $63,667.38. In 2006, the Deputy Sheriff for the County of Plymouth levied the execution against the Debtor’s interest in the Property. Premier initiated two other actions aimed at collection and setting aside the transfer to Sullivan, but had not obtained a judgment in either action at the time the Debtor filed her chapter 7 petition. In 2009, the Debtor recorded a new declaration of homestead on the Property (the “2009 Homestead”). Shortly thereafter, she filed her petition and claimed an exemption in the Property in the amount of $500,000.00 pursuant to Mass. Gen. Laws ch. 188, § 1, the Massachusetts homestead statute. The Debtor moved to avoid Premier’s lien pursuant to § 522(f) as impairing her homestead exemption. Premier objected on the grounds that the 2009 Homestead did not extend to Sullivan’s interest in the Property because Sullivan is an adult child who does not reside at the Property. The Bankruptcy Court held a nonevi-dentiary hearing and took the matter under advisement. Thereafter, the Bankruptcy Court issued the Order, accompanied by a memorandum of decision in which it concluded that Premier’s lien impaired the Debtor’s homestead exemption. The Bankruptcy Court noted that the cases Premier cited in support of its argument that the 2009 Homestead did not extend to Sullivan’s interest in the Property were inapposite because they “dealt with situations where the debtor was not the declarant of the homestead and attempted to invoke the protection of the other resident’s homestead.” This appeal followed. JURISDICTION A bankruptcy appellate panel may hear appeals from “final judgments, orders and decrees [pursuant to 28 U.S.C. § 158(a)(1)] or with leave of the court, from interlocutory orders and decrees [pursuant to 28 U.S.C. § 158(a)(3)].” Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court" }, { "docid": "3684435", "title": "", "text": "at the Property. The Bankruptcy Court held a nonevi-dentiary hearing and took the matter under advisement. Thereafter, the Bankruptcy Court issued the Order, accompanied by a memorandum of decision in which it concluded that Premier’s lien impaired the Debtor’s homestead exemption. The Bankruptcy Court noted that the cases Premier cited in support of its argument that the 2009 Homestead did not extend to Sullivan’s interest in the Property were inapposite because they “dealt with situations where the debtor was not the declarant of the homestead and attempted to invoke the protection of the other resident’s homestead.” This appeal followed. JURISDICTION A bankruptcy appellate panel may hear appeals from “final judgments, orders and decrees [pursuant to 28 U.S.C. § 158(a)(1)] or with leave of the court, from interlocutory orders and decrees [pursuant to 28 U.S.C. § 158(a)(3)].” Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Id. at 646 (citations omitted). An order granting a motion to avoid a judicial lien is a final order. Mountain Peaks Fin. Servs., Inc. v. Shepard (In re Shepard), 328 B.R. 601, 603 (1st Cir. BAP 2005); Bruin Portfolio, LLC v. Leicht (In re Leicht), 222 B.R. 670, 671 (1st Cir. BAP 1998). STANDARD OF REVIEW The Panel reviews the Bankruptcy Court’s findings of fact for clear error and conclusions of law de novo. See Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d 267, 269 (1st Cir.2010). As there are no facts in dispute, the issue is one of statutory construction, which the Panel reviews de novo. See Antognoni v. Basso (In re Basso), 397 B.R. 556, 562 (1st Cir. BAP 2008). DISCUSSION A debtor may exempt from the bankruptcy estate a homestead recognized as exempt under state law. See 11 U.S.C. § 522(b)(3); In re Basso, 397 B.R. 556. Here, the Debtor filed the 2009 Homestead pursuant to Mass. Gen. Laws ch. 188, § 1, and elected" }, { "docid": "3684436", "title": "", "text": "to do but execute the judgment.’ ” Id. at 646 (citations omitted). An order granting a motion to avoid a judicial lien is a final order. Mountain Peaks Fin. Servs., Inc. v. Shepard (In re Shepard), 328 B.R. 601, 603 (1st Cir. BAP 2005); Bruin Portfolio, LLC v. Leicht (In re Leicht), 222 B.R. 670, 671 (1st Cir. BAP 1998). STANDARD OF REVIEW The Panel reviews the Bankruptcy Court’s findings of fact for clear error and conclusions of law de novo. See Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d 267, 269 (1st Cir.2010). As there are no facts in dispute, the issue is one of statutory construction, which the Panel reviews de novo. See Antognoni v. Basso (In re Basso), 397 B.R. 556, 562 (1st Cir. BAP 2008). DISCUSSION A debtor may exempt from the bankruptcy estate a homestead recognized as exempt under state law. See 11 U.S.C. § 522(b)(3); In re Basso, 397 B.R. 556. Here, the Debtor filed the 2009 Homestead pursuant to Mass. Gen. Laws ch. 188, § 1, and elected the Massachusetts state exemption scheme in her bankruptcy case. As a joint tenant owner of the Property, the Debtor may claim a homestead exemption only in her one-half interest in the Property. See 11 U.S.C. § 522(b) (providing exemptions from property of the estate); 14C Mass. Prac., Summary of Basic Law § 15.28 (explaining that joint tenants each own an undivided interest in the property); Bishop v. Vitale, 2006 WL 2692576, *1 n. 3 (Mass.Land Ct. Sept.20, 2006). Premier argues that the 2009 Homestead does not protect Sullivan’s interest, because she is an adult child who does not reside at the Property. This argument erroneously assumes that Sullivan’s interest requires protection from its lien. Premier’s judgment was solely against the Debtor, and its attachment and subsequent lien were against the interest the Debtor had in the Property as of November 24, 2004. The Debtor had transferred the Property to herself and Sullivan as joint tenants prior to that date. Thus, the Debtor and Sullivan each owned a one-half interest in the Property at the time" }, { "docid": "19147374", "title": "", "text": "Hill, 562 F.3d 29, 32 (1st Cir.2009). III. Discussion Under § 541 of the Bankruptcy Code, all of the debtor’s legal and equitable interests in property at the time of her bankruptcy petition automatically become the property of the bankruptcy estate. 11 U.S.C. § 541(a)(1); In re Barroso-Herrans, 524 F.3d 341, 344 (1st Cir.2008) (“When an individual files for bankruptcy, all of his property ... becomes property of the estate.”). Nevertheless, § 522 of the Code allows a debtor to exempt certain property, based either on an enumerated list of federal exemptions or on any alternate exemptions provided by her state. See 11 U.S.C. § 522(b); In re Cunningham, 513 F.3d 318, 323 (1st Cir.2008); In re Hildebrandt, 320 B.R. 40, 43 (1st Cir. BAP 2005). Among the state exemptions incorporated by § 522 is the Massachusetts Homestead Act, which allows a debt- or to claim an interest of up to $500,000 in a home being used by the debtor as her principal residence. In re Peirce, 483 B.R. 368, 376 (Bankr.D.Mass.2012); see also Mass. Gen. Laws ch. 188, § 1. The debtor’s declared homestead exemption is insulated from conveyance, sale, or levy to help satisfy the debtor’s debts in bankruptcy, with the exception of (as relevant here) a debt secured by a lien on the property, such as a mortgage. Mass. Gen. Laws ch. 188, § 3(b); In re Swift, 458 B.R. 8, 15 (Bankr.D.Mass.2011) (“[A] debtor’s homestead exemption is not effective against a mortgagee where the mortgage in question was executed before the debtor recorded a declaration of homestead.”). The final working of the scheme is that, when a debtor declares a property as her homestead, proceeds realized from the sale of that property must be used- first to pay off any secured claims and subsequently to satisfy the debtor’s claimed exemption before, at last, being turned over to her bankruptcy estate. A core power of a bankruptcy trustee under § 363(b) of the Code is the right to sell “property of the estate” for the benefit of a debtor’s creditors. 11 U.S.C. § 363(b)(1) (“The trustee, after" }, { "docid": "13824802", "title": "", "text": "bankruptcy exemptions listed in § 522(d), other nonbankruptey federal law, and exemptions under state or local law. Once the debtor has claimed property as exempt, § 522(c) provides that such exempt property is not liable for any pre-petition debt except the specific types enumerated in § 522(c)(l)-(3). These types of debt include debts for certain taxes and customs duties; debt for alimony, maintenance, or support; liens that cannot be avoided; liens that are not void; tax liens; and certain nondis-chargeable debts owed to federal depository institutions. See 11 U.S.C. § 522(c). As suming for the moment that Patriot’s lien can be avoided, none of the above types of debt apply to the facts of this case. Weinstein chose the state exemption scheme and claimed a $55,000 homestead exemption under the Massachusetts Homestead Act, which provides: An estate of homestead to the extent of one hundred thousand dollars in the land and buildings may be acquired pursuant to this chapter by an owner or owners of a home ... who occupy or intend to occupy said home as a principal residence. Said estate shall be exempt from the laws of conveyance, descent, devise, attachment, levy on execution and sale for payment of debts or legacies except in the following cases: (1) sale for taxes; (2) for a debt contracted prior to the acquisition of said estate of homestead; .... Mass. Gen. Laws ch. 188, § 1 (emphasis added). Additionally, section 5 of the homestead statute withholds homestead protection from any preexisting lien. Specifically, the statute states: “No estate of homestead shall affect a mortgage, lien or other encumbrance previously existing.” Id. § 5. Bankruptcy Code § 522(f) governs lien avoidance. This provision allows avoidance of a judicial lien to the extent the lien impairs an exemption to which the debtor would otherwise be entitled. Section 522(f) provides: Notwithstanding any waiver of exemptions ... the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of" }, { "docid": "19147373", "title": "", "text": "(BAP) affirmed. Both tribunals concluded that, having preserved JP Morgan’s interest in Traverse’s home for the bankruptcy estate, the trustee was entitled to sell the home in order to liquidate that interest. While not disputing that Traverse’s current mortgage payments prevented DeGiacomo from foreclosing on her home in his capacity as mortgagee, the bankruptcy court and the BAP concluded that DeGiacomo could nevertheless sell the home pursuant to his core powers as a trustee administering a debtor’s property under the Bankruptcy Code. Traverse now challenges that conclusion as a matter of law. II. Standard of Review On appeal from the BAP, we train our analysis on the underlying bankruptcy court decision, reviewing factual findings for clear error and conclusions of law de novo. In re Canning, 706 F.3d 64, 68-69 (1st Cir.2013). Under the de novo standard, we do not defer to the bankruptcy court’s ruling, but consider the matter anew as though no decision were rendered below. Id. at 69. Neither do we cede any deference to the conclusions of the BAP. In re Hill, 562 F.3d 29, 32 (1st Cir.2009). III. Discussion Under § 541 of the Bankruptcy Code, all of the debtor’s legal and equitable interests in property at the time of her bankruptcy petition automatically become the property of the bankruptcy estate. 11 U.S.C. § 541(a)(1); In re Barroso-Herrans, 524 F.3d 341, 344 (1st Cir.2008) (“When an individual files for bankruptcy, all of his property ... becomes property of the estate.”). Nevertheless, § 522 of the Code allows a debtor to exempt certain property, based either on an enumerated list of federal exemptions or on any alternate exemptions provided by her state. See 11 U.S.C. § 522(b); In re Cunningham, 513 F.3d 318, 323 (1st Cir.2008); In re Hildebrandt, 320 B.R. 40, 43 (1st Cir. BAP 2005). Among the state exemptions incorporated by § 522 is the Massachusetts Homestead Act, which allows a debt- or to claim an interest of up to $500,000 in a home being used by the debtor as her principal residence. In re Peirce, 483 B.R. 368, 376 (Bankr.D.Mass.2012); see also Mass." }, { "docid": "11710112", "title": "", "text": "bankruptcy court ruled that Garran could claim only the later filed homestead exemption of his wife, thereby limiting him to a $300,000 homestead exemption. In re Garran, 274 B.R. 570, 575 (Bkrtey.D.Mass. 2002). Concluding that Citizens’ judicial lien did not impair this $300,000 exemption, the court denied Garran’s motion to avoid the lien. Id. at 576. On appeal, the district court affirmed. Garran v. Citizens Bank of Mass. (In re Garran), 280 B.R. 292, 293-94 (Bkrtcy.D.Mass.2002). Garran now appeals. n. We review the decision of the bankruptcy court directly, affording de novo review to the court’s resolution of the legal question presented. Rutanen v. Baylis (In re Baylis), 313 F.3d 9, 16 (1st Cir. 2002). A debtor is permitted to exempt a limited amount of certain property from the bankruptcy estate pursuant to 11 U.S.C. § 522(b) (2003) to protect those types of assets from creditors. As part of the bankruptcy petition, a debtor must file a list of property claimed as exempt. 11 U.S.C. § 522(0; Bank. R. 4003(a). In Massachusetts, a debtor can choose between the federal exemptions — those listed in § 522(d) — or the exemptions enumerated in state law. Patriot Portfolio v. Weinstein (In re Weinstein), 164 F.3d 677, 679 (1st Cir.1999); see also § 522(b)(2)(A) (permitting a debtor to select either federal or state exemptions). Garran chose the state exemptions. Along with exemptions for certain types of personal property, Massachusetts law has established two homestead exemptions. Under § 1 of the Homestead Act, any owner of a home may acquire “[a]n estate of homestead to the extent of $300,000 in the land and buildings.” Mass. Gen. Laws Ann. ch. 188, § 1. Entitlement to a homestead exemption is not automatic under Massachusetts law. An owner of property must file the necessary declaration of homestead before the exemption can be claimed. Id. § 2. Garran’s wife filed the necessary declaration of homestead as an owner of the Hingham property. Only one member of a family is permitted to file a declaration under § 1, and the filing of any member of a family protects the" }, { "docid": "19757401", "title": "", "text": "Hyde’s supervised release begins. We generally review arguments raised for the first time on appeal only for plain error alone. See United States v. LeMoure, 474 F.3d 37, 43 (1st Cir.2007). Error, let alone plain error, is wholly absent here, where the court’s statutory authority to adjust a defendant’s payment schedule is explicit: A judgment for a fine which permits payments in installments shall include a requirement that the defendant will notify the court of any material change in the defendant’s economic circumstances that might affect [his] ability to pay the fine. Upon receipt of such notice the court may ... adjust the payment schedule, or require immediate payment in full, as the interests of justice require. 18 U.S.C. § 3572(d)(3). III. For the reasons set forth above, we affirm the district court’s order that the United States may enforce its restitution order by garnishing the proceeds from the sale of Hyde’s residence. So ordered. . 11 U.S.C. § 522(b)(3)(A) extends federal bankruptcy protection to certain property exempt under state law, thereby incorporating the Massachusetts homestead exemption, which provides as follows: An estate of homestead to the extent of $500,000 in the land and buildings may be acquired pursuant to this chapter by an owner or owners of a home or one or all who rightfully possess the premise by lease or otherwise and who occupy or intend to occupy said home as a principal residence. Said estate shall be exempt from the laws of conveyance, descent, devise, attachment, levy on execution and sale for payment of debts or legacies except [in certain listed exceptions]. Mass. Gen. Laws ch. 188, § 1. . In pertinent part, this section provides: [T]he debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (A) a judicial lien, other than a judicial lien that secures a debt of a kind that is specified in section 523(a)(5) [for a domestic support obligation.]" } ]

[ { "docid": "22442665", "title": "", "text": "disclosure of the material must constitute a “clearly unwarranted invasion of personal privacy.” We believe that the list of names and addresses is a “file” within the meaning of Exemption (6). A broad interpretation of the statutory term to include names and addresses is necessary to avoid a denial of statutory protection in a case where release of requested materials would result in a clearly unwarranted invasion of personal privacy. Since the thrust of the exemption is to avoid unwarranted invasions of privacy, the term “files” should not be given an interpretation that would often preclude inquiry into this more crucial question. Furthermore, we believe the list of names and addresses is a file “similar” to the personnel and medical files specifically referred to in the exemption. The common denominator in “personnel and medical and similar files” is the personal quality of information in the file, the disclosure of which may constitute a clearly unwarranted invasion of personal privacy. We do not believe that the use of the term “similar” was intended to narrow the exemption from disclosure and permit the release of files which would otherwise be exempt because of the resultant invasion of privacy. We now turn to the Government’s contention that disclosure of the names and addresses to Wine Hobby would result in a “clearly unwarranted invasion of personal privacy.” Because of an apparent conflict in the circuits, we must first consider whether the statutory language, which clearly demands an examination of the invasion of privacy, also requires inquiry into the interest in disclosure. Our examination of the statute and its legislative history leads us .to conclude, in the language of the District of Columbia Circuit, that “Exemption (6) necessarily requires the court to balance a public interest purpose for disclosure of personal information against the potential invasion of individual privacy.” Getman v. N.L.R.B., 450 F.2d at 677 n. 24 (1971). On its face, the statute, by the use of term “unwarranted,” compels a balancing of interests. The interpretation, moreover, is supported by the legislative history. We disagree with the view of the Fourth Circuit that the" } ]

[ { "docid": "22725128", "title": "", "text": "suggested distinction between “personnel” and “similar” files to either the District Court or the Court of Appeals, and the opinions of both courts treat Exemption 6 as making no distinction between “personnel” and “similar” files in the application of the “clearly unwarranted invasion of personal privacy” requirement. The District Court held that “ [i] t is only the identifying connection to the individual that casts the personnel, medical, and similar files within the protection of [the] sixth exemption.” Pet. for Cert. 30A-31A. The Court of Appeals stated: “[W]e are dealing here with 'personnel’ or 'similar files.’ But the key words, of course, are 'a clearly unwarranted invasion of personal privacy’ . . . .” 495 F. 2d, at 266. We agree with these views, for we find nothing in the wording of Exemption 6 or its legislative history to support the Agency’s claim that Congress created a blanket exemption for personnel files. Judicial interpretation has uniformly reflected the view that no reason would exist for nondisclosure in the absence of a showing of a clearly unwarranted invasion of privacy, whether the documents are filed in “personnel” or “similar” files. See, e. g., Wine Hobby USA, Inc. v. IRS, 502 F. 2d 133, 135 (CA3 1974); Rural Housing Alliance v. United States Dept. of Agriculture, 162 U. S. App. D. C. 122, 126, 498 F. 2d 73, 77 (1974); Vaughn v. Rosen, 157 U. S. App. D. C. 340, 484 F. 2d 820 (1973); Getman v. NLRB, 146 U. S. App. D. C. 209, 213, 450 F. 2d 670, 674 (1971). Congressional concern for the protection of the kind of confidential personal data usually included in a personnel file is abundantly clear. But Congress also made clear that nonconfidential matter was not to be insulated from disclosure merely because it was stored by an agency in its “personnel” files. Rather, Congress sought to construct an exemption that would require a balancing of the individual’s right of privacy against the preservation of the basic purpose of the Freedom of Information Act “to open agency action to the light of public scrutiny.” The" }, { "docid": "18076277", "title": "", "text": "that the in vestigatory report comes well within the ambit of exemption 6. That exemption was designed to protect individuals from public disclosure of intimate details of their lives, whether the disclosure be of personnel files, medical files, or other similar files. The exemption is not limited to Veterans’ Administration or Social Security files, but rather is phrased broadly to protect individuals from a wide range of embarrassing disclosures. As the materials here contain information regarding marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, reputation, and so on, it appears that the report involves sufficiently intimate details to be a “similar” file under exemption 6. Of course, our interpretation of the statute, concluding that the investigatory report comes within the class of similar files which exemption 6 aimed at protecting, does not resolve the question whether exemption 6 dictates nondisclosure here, for exemption 6 specifically permits protection only of those files whose disclosure would result in “a clearly unwarranted invasion of personal privacy.” On remand, it is for the District Judge to determine whether the files fall within that category. In an opinion by Judge Wright, this court has previously considered the scope of the “clearly unwarranted invasion” language, in Getman v. NLRB. We held that exemption 6 involves a balancing of the interests of the individuals in their privacy against the interests of the public in being informed. We noted that the statute “instructs the court to tilt the balance in favor of disclosure.” Specifically we suggested that in balancing interests the court should first determine if disclosure would constitute an invasion of privacy, and how severe an invasion. Second, the court should weigh the public interest purpose of those seeking disclosure, and whether other sources of information might suffice. Such balancing is unique for exemption 6; normally no inquiry into the use of information is made, and the information is made available to any person. These principles should be applied in evaluating the investigatory re ports at issue here. The District Court should first determine the nature and" }, { "docid": "4126972", "title": "", "text": "records compiled for law enforcement purposes within the meaning of exemption 7(C). In light of this, the court must determine the extent to which disclosure of any of the withheld information would constitute an unwarranted invasion of privacy. When dealing with the FOIA exemptions relating to personal privacy, a court must balance the individual’s interest in privacy against the public’s right to know. Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 1608, 48 L.Ed.2d 11 (1976) (Exemption b(6)); Rural Housing Alliance v. United States Department of Agriculture, 162 U.S.App.D.C. 122, 126, 498 F.2d 73, 77 (D.C.Cir. 1974); Tax Reform Research Group v. Internal Revenue Service, 419 F.Supp. 415, 419 (D.D.C. 1976). In Rose, supra, .the Supreme Court indicated that, while exemption (b)(6) applied only to “clearly unwarranted” invasions of privacy, Congress had explicitly dropped such a stringent requirement when enacting exemption (b)(7)(C), making the latter exemption applicable where invasion of privacy would simply be unwarranted. 96 S.Ct. at 1607 n. 16. The Fourth Circuit has determined that, as the government in this case argues, in light of Rose, greater weight should be given to a claim of personal privacy under exemption (b)(7)(C) than under exemption (b)(6). Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1136 n. 7 (4th Cir. 1977). Similarly, the court in Congressional News Syndicate v. United States Department of Justice, 438 F.Supp. 538 (D.D.C. 1977), stated: The difference in wording between the two exemptions was advised and not accidental; its effect is to make Exemption 7(C) a somewhat broader shield against disclosure than Exemption 6. The difference in breadth, in turn, is attributable to the inherent distinctions between investigatory files and personnel, medical and similar files: that an individual’s name appears in files of the latter kind, without more, will probably not engender comment and speculation, while, as the Government argues here, an indi-' vidual whose name surfaces in connection with an investigation may, without more, become the subject of rumor and innuendo. Id. at 541. Although the court in Congressional News Syndicate did not reach the conclusion that personal privacy interests must" }, { "docid": "23557480", "title": "", "text": "of the case” in respect to a claim of investigatory files” exemption. However, the court did not disturb its previous decision that HEW review of public school segregation and discrimination practices in the North were exempt, “[wjithout engaging in any ‘balance’ of considerations . . 502 F.2d at 374. The Senate Report duly remarked that: A number of agencies have by regulation adopted this position that, notwithstanding applicability of an FOIA exemption, records must be disclosed where there is no compelling reason for withholding. (E. g., Interior— 43 C.F.R. § 22; HEW — 15 C.F.R. § 5.70; HUD — 24 C.F.R. § 15.21; DOT — 19 C.F.R. § 7.51.) This approach was clearly intended by Congress in passing the FOIA. Sourcebook at 158. . The only element of “privacy” under Exemption 7(C) involved that has been suggested by the NLRB is the disclosure of the employees’ names as persons who made statements about the pending charge. Of course, under the sixth exemption to the FOIA, which Exemption 7(C) echoes, personal and medical files are not to be ordered to be disclosed if disclosure would constitute an unwarranted invasion of personal privacy. 5 U.S.C. § 552(b)(6). Thus, for example, it would constitute an invasion of privacy if a corporation in the wine hobby business .were entitled to obtain the names and addresses of all persons who registered with the United States Bureau of Alcohol, Tobacco and Firearms to produce wine for family use in the mid-Atlantic region. See Wine Hobby U.S.A., Inc. v. IRS, 502 F.2d 133 (3d Cir. 1974), emphasizing the fact that registrants’ home addresses and personal activities, family status, control or responsibility and other personal matters would be disclosed. See also Rural Housing Alliance v. United States Department of Agriculture, 162 U.S.App.D.C. 122, 498 F.2d 73 (1974); Ackerly v. Ley, 137 U.S. App.D.C. 133, 420 F.2d 1336 (1969). Here, however, the court below examined the material in question and “found no personal matters which should be protected under Exemption 7(C).” Its decision is supported, we might add, by Local 30, United Slate, Tile and Composition Roofers v. NLRB," }, { "docid": "12560453", "title": "", "text": "text supra at note 21. . Rural Housing Alliance v. United States Dep’t of Agriculture, supra note 22, 162 U.S. App.D.C. at 127, 498 F.2d at 78. . Getman v. NLRB, supra note 22, 146 U.S. App.D.C. at 213, 450 F.2d at 674. . Id. at 216, 450 F.2d at 677. . Ditlow v. Shultz, supra note 22, 170 U.S.App.D.C. at 359-360, 517 F.2d at 173-174. . Board of Trade v. CFTC, supra note 4, App. 4, App. 139. . Rural Housing Alliance v. United States Dep’t of Agriculture, supra note 22, 162 U.S.App.D.C. at 126, 498 F.2d at 77; see Robles v. EPA, 484 F.2d 843, 845 (4th Cir. 1973) (the term “similar files” applies only to “information which relates to a specific person or individual, to ‘intimate details’ of a ‘highly personal nature’ in that individual’s employment record or health history or the like”). . Rural Housing Alliance v. United States Dep’t of Agriculture, supra note 22, 162 U.S.App.D.C. at 126, 498 F.2d at 77. . Id. . Department of Air Force v. Rose, 425 U.S. 352, 376-377, 96 S.Ct. 1592, 1606-1607, 48 L.Ed.2d 11, 30-31 (1976). . Id. at 380-382, 96 S.Ct. at 1608-1609, 48 L.Ed.2d at 32-33. . See Getman v. NLRB, supra note 22, 146 U.S.App.D.C. at 213-215, 450 F.2d at 674-676 (suggesting that such information is not a similar file, but holding that even if it were, release would not be a “clearly unwarranted invasion of privacy”). . See Robles v. EPA, supra note 48, 484 F.2d at 845-848 (suggesting that such records are not similar files, but holding that in any event release would not constitute a “clearly unwarranted invasion of privacy”). . The Board claims that the “trade sources” are corporation personnel rather than persons acting in their individual capacities. Brief for Appellee at 32 n.22. The Commission has not responded to this allegation. . Whether purely commercial information is protected from disclosure turns on the applicability of Exemption 4, 5 U.S.C. § 552(b)(6) (1976). See Part III infra. . In support of its argument that the names and details tending to" }, { "docid": "972301", "title": "", "text": "Dept. of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976): \"_ _ _We find nothing in the wording of Exemption 6 or its legislative history to support the Agency’s claim that Congress created a blanket exemption for personnel files. Judicial interpretation has uniformly reflected the view that no reason would exist for nondisclosure in the absence of a showing of a clearly unwarranted invasion of privacy whether the documents are filed in ‘personnel’. or ‘similar’ files. See, e. g., Wine Hobby USA, Inc. v. IRS, 502 F.2d 133, 135 (CA3 1974); Rural Housing Alliance v. United States Dept. of Agriculture, 162 U.S.App.D.C. 122, 126, 498 F.2d 73, 77 (1974); Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973); Getman v. NLRB, 146 U.S.App.D.C. 209, 213, 450 F.2d 670, 674 (1971). Congressional concern for the protection of the kind of confidential personal data usually included in a personnel file is abundantly clear. But Congress also made clear that non-confidential matter was not to be insulated from disclosure merely because it was stored by the Agency in ‘personnel’ files.” 425 U.S. 371, 96 S.Ct. 1604, 48 L.Ed. 27. (Emphasis supplied) Accordingly, if it is determined that requested information is a personnel, medical or similar file, and only then, we must proceed to the second step, which is a determination of whether or not a disclosure of the information would “constitute a clearly unwarranted invasion of personal privacy.” If so, the material is exempt, and, if not, it is not exempt and must be disclosed. Although not saying so in so many words, the courts have been fairly uniform in following this two-prong determination of what should or should not be disclosed under Exemption 6. This procedure was followed in Department of the Air Force v. Rose, supra; in Robles v. E. P. A., 484 F.2d 843, 4th Cir., (1973); in Rural Housing Alliance v. U. S. Department of Agriculture, 162 U.S.App.D.C. 122, 126, 498 F.2d 73, 77 (1974); in Getman v. N. L. R. B., 146 U.S. App.D.C. 209, 213, 450 F.2d 670, 674 (1971);" }, { "docid": "18076276", "title": "", "text": "Recognizing that in certain circumstances disclosure realistically would not be in the public interest, Congress attempted to delineate a series of narrow exemptions. The sixth exemption provides that disclosure is unnecessary if the matters are “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The District Court held that exemption 6 “has no application to this investigatory report.” This holding was based on the view that the exemption “was designed to apply to detailed personal resumes and health records from agencies such as the Veterans Administration, welfare departments and the military.” We think this statutory interpretation incorrect. We hold that exemption 6 is applicable to material such as the report here, hence we reverse the District Court and remand for appropriate review. While the District Judge provided no elaboration of his rationale in the form of findings, he implied that the report here could not be considered “similar files” under exemption 6. Looking to the purpose of exemption 6, on the contrary, we believe that the in vestigatory report comes well within the ambit of exemption 6. That exemption was designed to protect individuals from public disclosure of intimate details of their lives, whether the disclosure be of personnel files, medical files, or other similar files. The exemption is not limited to Veterans’ Administration or Social Security files, but rather is phrased broadly to protect individuals from a wide range of embarrassing disclosures. As the materials here contain information regarding marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, reputation, and so on, it appears that the report involves sufficiently intimate details to be a “similar” file under exemption 6. Of course, our interpretation of the statute, concluding that the investigatory report comes within the class of similar files which exemption 6 aimed at protecting, does not resolve the question whether exemption 6 dictates nondisclosure here, for exemption 6 specifically permits protection only of those files whose disclosure would result in “a clearly unwarranted invasion of personal privacy.” On remand," }, { "docid": "22322956", "title": "", "text": "public interest in smooth operation of Civil Service Commission); Wine Hobby, U. S. A. v. United States Internal Revenue Service, 502 F.2d 133 (3d Cir. 1974) (forms filed by persons seeking “family use” exception to alcohol production taxes exempt when balanced against the interest of a private firm in obtaining names of these persons for mailing list advertisement purposes). But see Robles v. E. P. A., 484 F.2d 843 (4th Cir. 1973). The case law thus identifies four factors to be balanced in weighing a claim of exemption for a “clearly unwarranted invasion of personal privacy”: (1) the plaintiff’s interest in disclosure; (2) the public interest in disclosure; (3) the degree of the invasion of personal privacy; and (4) the availability of any alternative means of obtaining the requested information. In weighing the factors, we keep in mind that the invasion of privacy must be “clearly” unwarranted. For the privacy exemption to be applicable, the information must be contained in “personnel [or] medical files [or] similar files.” 5 U.S.C. § 552(b)(6). A “similar” file is defined simply as a file which contains information similar to that found in a standard personnel file. See Pacific Molasses Co., Inc. v. N. L. R. B., 577 F.2d 1172 (5th Cir. 1978) (information contained on union preference cards signed by employees found to be of a sufficiently “personal” nature to qualify the cards as “similar” files); Rural Housing Alliance v. United States, 162 U.S.App.D.C. 122, 498 F.2d 73 (D.C.Cir. 1974) (government report on housing discrimination found to qualify as a “similar file” because of information concerning marital status, legitimacy of children, medical condition, etc. of individual homeowners). C. Application of the Exemption On the threshold issue of whether the documents at issue here qualify as “per sonnel,” “medical,” or “similar” files, we find that each of the documents may be classified as protected files. Each contains a sufficient amount of personal information to merit consideration for exemption (6) status. Applying the balancing test to the portion of Document Nos. 3 and 4 in Department of Defense for which exemption (6) is claimed, we find" }, { "docid": "3343250", "title": "", "text": "Cir. 1978). The relevant consideration is whether the privacy interests arising from the information sought are similar to those arising from personnel or medical files, and not whether the information is recorded in a manner similar to a personnel or medical record. As the Sixth Circuit recently noted in a case involving, as did Pacific Molasses, an employer’s request for union authorization cards submitted to the NLRB: Exemption 6 covers “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Union authorization cards cannot be characterized as “personnel or medical files;” however, these cards do fall within the meaning of “similar files.” [The words “similar files”] mean that the records in question must, like medical and personnel files, contain information of a personal or confidential nature. Madeira Nursing Center, Inc. v. NLRB, 615 F.2d 728 (6 Cir. 1980). The exception has been applied to a number of diverse documents, several of which could not be labelled “personnel” or “medical” files. See, e. g., Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (case summaries in Honor and Ethics Code files of the Air Force Academy); Chamberlain v. Kurtz, 589 F.2d 827, 841-42 (5 Cir. 1979) (memoranda on disciplinary proceedings involving persons within the Internal Revenue Service); Wine Hobby USA v. IRS, 502 F.2d 133, 135 (3 Cir. 1974) (IRS list of persons registered with government as producing wine for family use); Rural Housing Alliance v. U.S. Department of Agriculture, 498 F.2d 73, 76-77 (D.C.Cir.1974) (investigatory report on housing discrimination containing information on marital status, legitimacy of children, etc.). It cannot be doubted that the information Harbolt seeks to obtain is of a “personal or confidential nature.” The District Court adopted the following findings of a United States Magistrate, which were based upon an uncontroverted affidavit: As reflected in the affidavit of John W. DeWitt, Deputy Assistant Secretary for Consular Affairs of the Department of State, the primary purpose for soliciting information from persons arrested abroad is to establish their citizenship, identity and possible entitlement" }, { "docid": "972278", "title": "", "text": "constitutes a “similar file” have placed just as great an emphasis on the personal nature of the requested information. The Third Circuit in Wine Hobby U.S.A., Inc. v. I.R.S., 502 F.2d 133 (3rd Cir. 1974) held that the names and addresses of those people who had registered with the government to produce wine for family use were protected by Exemption 6. In so holding the Court explained: We believe that the list of names and addresses is a “file” within the meaning of Exemption (6). A broad interpretation of the statutory term to include names and addresses is necessary to avoid a denial of statutory protection in a case where release of requested materials would result in a clearly unwarranted invasion of personal privacy. Since the thrust of the exemption is to avoid unwarranted invasions of privacy, the term “files” should not be given an interpretation that would often preclude inquiry into this more crucial question. Furthermore, we believe the list of names and addresses is a file “similar” to the personnel and medical files specifically referred to in the exemption. The common denominator in “personnel and medical and similar files” is the personal quality of information in the file, the disclosure of which may constitute a clearly unwarranted invasion of personal privacy. We do not believe that the use of the term “similar” was intended to narrow the exemption from disclosure and permit the release of files which would otherwise be exempt because of the resultant invasion of privacy. Id. at 135. The District of Columbia Court of Appeals was equally as concerned with the personal nature of the information sought when it held that a report by the Department of Agriculture on governmental housing discrimination fell within the definition of “similar files.” In Rural Housing Alliance v. United States Dept. of Agr., 162 U.S.App.D.C. 122, 498 F.2d 73 (1974), the Court stated that: [W]e believe that the investigatory report comes well within the ambit of exemption 6. That exemption was designed to protect individuals from public disclosure of intimate details of their lives, whether the disclosure be of" }, { "docid": "22322955", "title": "", "text": "is unique for exemption 6; normally no inquiry into the use of information is made, and the information is made available to any person.” 162 U.S.App.D.C. 122, 126, 498 F.2d 73, 77. The weight of the authority among the various circuits is clearly in accord with the “balancing” rationale. See Pacific Molasses Co. v. N. L. R. B., 577 F.2d 1172 (5th Cir. 1978) (union preference cards signed by employees exempt); Committee on Masonic Homes, etc. v. N. L. R. B., 556 F.2d 214 (3d Cir. 1977) (union preference cards exempt since little public interest in disclosure and great potential for “chilling effect” in exercise of union privileges if disclosure takes place); Columbia Packing Co., Inc. v. U. S. Dept. of Agriculture, 563 F.2d 495 (1st Cir. 1977) (privacy interest in personnel files outweighed by public interest in performance of government meat inspectors suspected of accepting bribes); Campbell v. United States Civil Service Commission, 539 F.2d 58 (10th Cir. 1976) (privacy interest in personnel files of government employees who were erroneously classified not outweighed by public interest in smooth operation of Civil Service Commission); Wine Hobby, U. S. A. v. United States Internal Revenue Service, 502 F.2d 133 (3d Cir. 1974) (forms filed by persons seeking “family use” exception to alcohol production taxes exempt when balanced against the interest of a private firm in obtaining names of these persons for mailing list advertisement purposes). But see Robles v. E. P. A., 484 F.2d 843 (4th Cir. 1973). The case law thus identifies four factors to be balanced in weighing a claim of exemption for a “clearly unwarranted invasion of personal privacy”: (1) the plaintiff’s interest in disclosure; (2) the public interest in disclosure; (3) the degree of the invasion of personal privacy; and (4) the availability of any alternative means of obtaining the requested information. In weighing the factors, we keep in mind that the invasion of privacy must be “clearly” unwarranted. For the privacy exemption to be applicable, the information must be contained in “personnel [or] medical files [or] similar files.” 5 U.S.C. § 552(b)(6). A “similar” file is" }, { "docid": "22640785", "title": "", "text": "met: first, the information must be contained in personnel, medical, or “similar” files, and second, the information must be of such a nature that its disclosure would constitute a clearly unwarranted invasion of personal privacy. Id,., at 373, 647 F. 2d, at 198. Petitioners argued that the first requirement was satisfied because the information sought by respondent was contained in “similar files.” The Court of Appeals disagreed, holding that the phrase “similar files” applies only to those records which contain information “‘“of the same magnitude — as highly personal or as intimate in nature — as that at stake in personnel and medical records.”’” Id., at 373-374, 647 F. 2d, at 198-199 (quoting Simpson v. Vance, 208 U. S. App. D. C. 270, 273, 648 F. 2d 10, 13 (1980), in turn quoting Board of Trade v. Commodity Futures Trading Comm’n, 200 U. S. App. D. C. 339, 345, 627 F. 2d 392, 398 (1980)). Because it found the citizenship status of Behzadnia and Yazdi to be less intimate than information normally contained in personnel and medical files, the Court of Appeals held that it was not contained in “similar files.” Therefore, the Court of Appeals reasoned, there was no need to consider whether disclosure of the information would constitute a clearly unwarranted invasion of personal privacy; having failed to meet the first requirement of Exemption 6, the information had to be disclosed under the mandate of the FOIA. We granted certiorari, 454 U. S. 1030 (1981), to review the Court of Appeals’ construction of the “similar files” language, and we now reverse. The language of Exemption 6 sheds little light on what Congress meant by “similar files.” Fortunately, the legislative history is somewhat more illuminating. The House and Senate Reports, although not defining the phrase “similar files,” suggest that Congress’ primary purpose in enacting Exemption 6 was to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information. After referring to the “great quantities of [Federal Government] files containing intimate details about millions of citizens,” the House Report explains that the exemption" }, { "docid": "21885310", "title": "", "text": "similar files.” Board of Trade of City of Chicago v. Commodity Futures Trading Comm’n, supra, 627 F.2d at 399, quoting Rural Housing Alliance v. U.S. Dep’t of Agriculture, 498 F.2d 73, 77 (D.C. Cir. 1974); see Robles v. EPA, 484 F.2d 843, 845 (4th Cir. 1973). Although the opinion in Rural Housing stated that the exemption “is phrased broadly to protect individuals from a wide range of embarrassing disclosures,” 498 F.2d at 77, the context makes clear the court’s recognition that the disclosures with which the statute is concerned are those involving matters of an intimate personal nature. Because of its intimate personal nature, information regarding “marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, reputation, and so on” falls within the ambit of Exemption 6. Id. By contrast, as Judge Robinson stated in the Chicago Board of Trade case, 627 F.2d at 399, the decisions of this court have established that information connected with professional relationships does not qualify for the exemption. In Getman v. NLRB, supra, for example, we ordered disclosure of a list of names and addresses of persons eligible to vote in union representation elections, despite assertions that their privacy would be compromised. Although holding explicitly only that release would not constitute a clearly unwarranted invasion of privacy, we strongly suggested that the requested lists of names and addresses failed to qualify as “similar files.” “[T]he real thrust of Exemption (6),” we wrote, “is to guard against unnecessary disclosure of files of such agencies as the Veterans Administration or the Welfare Department or Selective Service or Bureau of Prisons * * *. The giving of names and addresses is a very much lower degree of disclosure[.]” 450 F.2d at 675. Board of Trade of City of Chicago v. Commodity Futures Trading Comm’n, supra, provides more direct authority. That case arose from an investigation by the Commodity Futures Trading Commission of the Board of Trade’s contract to operate a commodity futures market in Chicago. As part of its inquiry into the plywood futures contract the Commission solicited criticisms" }, { "docid": "22725130", "title": "", "text": "device adopted to achieve that balance was the limited exemption, where privacy was threatened, for “clearly unwarranted” invasions of personal privacy. Both House and Senate Reports can only be read as disclosing a congressional purpose to eschew a blanket exemption for “personnel . . . and similar files” and to require a balancing of interests in either case. Thus the House Report states, H. R. Rep. No. 1497, p. 11: “The limitation of a 'clearly unwarranted invasion of personal privacy’ provides a proper balance between the protection of an individual’s right of privacy and the preservation of the public’s right to Government information by excluding those kinds of files the disclosure of which might harm the individual.” Similarly, the Senate Report, S. Rep. No. 813, p. 9, states: “The phrase 'clearly unwarranted invasion of personal privacy’ enunciates a policy that will involve a balancing of interests between the protection of an individual’s private affairs from unnecessary public scrutiny, and the preservation of the public’s right to governmental information.” Plainly Congress did not itself strike the balance as to “personnel files” and confine the courts to striking the balance only as to “similar files.” To the contrary, Congress enunciated a single policy, to be enforced in both cases by the courts, “that will involve a balancing” of the private and public interests. This was the conclusion of the Court of Appeals for the District of Columbia Circuit as to medical files, and that conclusion is equally applicable to personnel files: “Exemption (6) of the Act covers .. medical files ... the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.’ Where a purely medical file is withheld under authority of Exemption (6), it will be for the District Court ultimately to determine any dispute as to whether that exemption was properly invoked.” Ackerly v. Ley, 137 U. S. App. D. C. 133, 136-137, n. 3, 420 F. 2d 1336, 1339-1340, n. 3 (1969) (ellipses in original). See also Wine Hobby USA, Inc. v. IRS, supra, at 135. Congress’ recent action in amending the Freedom of Information Act to" }, { "docid": "22322957", "title": "", "text": "defined simply as a file which contains information similar to that found in a standard personnel file. See Pacific Molasses Co., Inc. v. N. L. R. B., 577 F.2d 1172 (5th Cir. 1978) (information contained on union preference cards signed by employees found to be of a sufficiently “personal” nature to qualify the cards as “similar” files); Rural Housing Alliance v. United States, 162 U.S.App.D.C. 122, 498 F.2d 73 (D.C.Cir. 1974) (government report on housing discrimination found to qualify as a “similar file” because of information concerning marital status, legitimacy of children, medical condition, etc. of individual homeowners). C. Application of the Exemption On the threshold issue of whether the documents at issue here qualify as “per sonnel,” “medical,” or “similar” files, we find that each of the documents may be classified as protected files. Each contains a sufficient amount of personal information to merit consideration for exemption (6) status. Applying the balancing test to the portion of Document Nos. 3 and 4 in Department of Defense for which exemption (6) is claimed, we find no error committed. The Document No. 3 security background information involves various details of employment and personal history of the subject individual. Release of the bulk of the exempt portions of this document would tend to identify the individual and to reveal details of this individual’s life which are clearly exempt under current case law. Other deleted portions of Document No. 3 would tend to identify certain individuals who are associated with the Church, and various positions which they have held in the Church and affiliated organizations. On balance, we cannot say that the court erred in upholding the government’s excision of the information pertaining to Church personnel. A reasonable person would be very likely to find that disclosure of religious affiliations and activities would constitute an invasion of his or her privacy. Additionally, the Church can obtain this information simply by cheeking its own membership and personnel files. There is no reason in this case to order public disclosure of such information. Disclosure of Document No. 4 would clearly constitute an unwarranted invasion of" }, { "docid": "22725163", "title": "", "text": "not measure “sole relationship,” which is a primary concept. These summaries involve the discipline, fitness, and training of cadets. They are administered and enforced on an Academy-limited basis by the cadets themselves, and they exist wholly apart from the formal system of courts-martial and the Uniform Code of Military Justice. B. The Act’s sixth exemption, § 522 (b)(6), is equally supportive for the petitioners here and for the result opposite to that which the Court reaches today. This exemption applies to matters that are “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.\" Once again, we have a specific reference to “personnel . . . files,” and what I have said above applies equally here. But, in addition, the sixth exemption covers “similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The added restrictive phrase applies not to “personnel,” and surely not to “medical files,” but only to “similar files.” See Robles v. EPA, 484 F. 2d 843, 845-846 (CA4 1973). The emphasis is on personnel files and on medical files and on “similar” files to the extent that privacy invasion of the latter would be unwarranted. The exemption as to personnel files and as to medical files is clear and unembellished. It is almost inconceivable to me that the Court is willing today to attach the qualification phrase to medical files and thereby open to the public what has been recognized as almost the essence of ultimate privacy. The law’s long established physician-patient privilege establishes this. Anyone who has had even minimal contact with the practice of medicine surely cannot agree with this extension by judicial construction and with the reasoning of another Court of Appeals in Ackerly v. Ley, 137 U. S. App. D. C. 133, 136-137, n. 3, 420 F. 2d 1336, 1339-1340, n. 3 (1969), referred to and seemingly approved by the Court. Ante, at 373. If, then, these case summaries are something less than “personnel files,” a proposition I do not accept, they surely are “similar” to personnel" }, { "docid": "972279", "title": "", "text": "specifically referred to in the exemption. The common denominator in “personnel and medical and similar files” is the personal quality of information in the file, the disclosure of which may constitute a clearly unwarranted invasion of personal privacy. We do not believe that the use of the term “similar” was intended to narrow the exemption from disclosure and permit the release of files which would otherwise be exempt because of the resultant invasion of privacy. Id. at 135. The District of Columbia Court of Appeals was equally as concerned with the personal nature of the information sought when it held that a report by the Department of Agriculture on governmental housing discrimination fell within the definition of “similar files.” In Rural Housing Alliance v. United States Dept. of Agr., 162 U.S.App.D.C. 122, 498 F.2d 73 (1974), the Court stated that: [W]e believe that the investigatory report comes well within the ambit of exemption 6. That exemption was designed to protect individuals from public disclosure of intimate details of their lives, whether the disclosure be of personnel files, medical files, or other similar files. The exemption is not limited to Veterans’ Administration or Social Security files, but rather is phrased broadly to protect individuals from a wide range of embarrassing disclosures. As the materials here contain information regarding marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, reputation, and so on, it appears that the report involves sufficiently intimate details to be a “similar” file under exemption 6. Id., 162 U.S.App.D.C. at 125-26, 498 F.2d at 76-77. The Third Circuit is the only Circuit that has had the opportunity to consider the specific question before us. In ruling that the union authorization cards did fall within the definition of “similar files,” the Court relied on the previously mentioned Wine Hobby opinion. The Court stated: The first hurdle, then, is to determine whether the union cards held by the NLRB are “similar files.” We will not construe this term in a narrow, technical way if to do so would defeat the purpose of" }, { "docid": "22590185", "title": "", "text": "disclosure under both Exemptions (6) and (7) of 5 U.S.C. § 552(b). Exemption (6) states that the FOIA disclosure provisions are inapplicable to “. . . personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Since the requested information is not contained in personnel or medical files, the F.B.I. must show that the documents withheld are “similar files” within the meaning of this section, and that disclosure of the information contained in the documents would constitute a “clearly unwarranted invasion of personal privacy.” Lamont v. Dept, of Justice, 475 F.Supp. 761, 781 (S.D.N.Y.1979). “There is, to a large extent, an essential interrelationship between the question whether information to which access is denied under the aegis of Exemption 6 is ‘similar’ to personnel or medical files, and the inquiry whether disclosure of the information would result in an unwarranted invasion of privacy .. . [Bjoth questions turn on whether the facts that would be revealed would infringe on some privacy interest ...” Board of Trade of the City of Chicago v. Commodity Futures Trading Commission, 627 F.2d 392, 397 (D.C.Cir. 1980). Thus, a finding that the requested information is similar to that contained in personnel or medical files, necessarily implies that there is a substantial privacy interest that must be overcome before disclosure is warranted. Whether the information concerning Ms. Shepardson is similar to that contained in personnel or medical files also depends upon the personal, intimate quality of the information. Id., at 398. The facts withheld must touch on the intimate details of a person’s life. Board of Trade, supra, 627 F.2d at 398, 399; 77 (D.C.Cir.1974). The words “similar files” have been held to include facts concerning marital status, legitimacy, paternity, medical condition, welfare payments, alcoholic consumption, Rural Housing Alliance v. U. S. Dept. of Agriculture, 498 F.2d 73, 77 (D.C.Cir.1974), as well as a record of arrests and convictions. Malloy v. U. S. Dept. of Justice, 457 F.Supp. 543, 545 (D.D.C.1978). These kinds of facts are regarded as personal because their public disclosure could subject the person" }, { "docid": "18291312", "title": "", "text": "here, the legislative scheme permits access to this [private banking] information without invocation of the judicial process. In such instances, the important responsibility for balancing societal and individual interests is left to unreviewed executive discretion, rather than the scrutiny of a neutral magistrate. California Bankers Ass’n v. Shultz, 416 U.S. 21, 79, 94 S.Ct. 1494, 1526, 39 L.Ed.2d 812 (1974) (Powell, J., concurring). While most FOIA exemptions eschew judicial balancing, exemptions 7(C) and 6 require it in order to safeguard privacy. The Supreme Court has affirmed that While Rose dealt with exemption 6, we shall treat 6 and 7(C) as identical in meaning because of their similarity of purpose and language, except that an unwarranted invasion of personal privacy permits withholding of investigatory files under exemption 7(C), but only a clearly unwarranted invasion of personal privacy permits withholding of personnel, medical and other files under exemption 6. Congress sought to construct an exemption that would require a balancing of the individual’s right of privacy against the preservation of the basic purpose of the Freedom of Information Act Dept. of Air Force v. Rose, 425 U.S. at 372, 96 S.Ct. at 1604. 1) A developing case law has begun to give meaning to these exemptions and to strike an appropriate balance between individual privacy and public disclosure. The case law has defined the “privacy” which FOIA protects largely in terms of the content of information and has tried to demarcate those informational topics which are deeply private from those which are only minimally private. Cases begin their search for a definition of privacy with the phrases “ ‘intimate details’ of a ‘highly personal’ nature” and “commonly thought of as private” matters. One court has singled out “information [regarding] marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, reputation . ” as involving intimate details; added to these are religious and philosophic beliefs and travel history. Courts have also tried to define privacy by the emotion which disclosure evokes: matters are private which, if disclosed, evoke embarrassment in a person of normal sensibilities." }, { "docid": "972302", "title": "", "text": "it was stored by the Agency in ‘personnel’ files.” 425 U.S. 371, 96 S.Ct. 1604, 48 L.Ed. 27. (Emphasis supplied) Accordingly, if it is determined that requested information is a personnel, medical or similar file, and only then, we must proceed to the second step, which is a determination of whether or not a disclosure of the information would “constitute a clearly unwarranted invasion of personal privacy.” If so, the material is exempt, and, if not, it is not exempt and must be disclosed. Although not saying so in so many words, the courts have been fairly uniform in following this two-prong determination of what should or should not be disclosed under Exemption 6. This procedure was followed in Department of the Air Force v. Rose, supra; in Robles v. E. P. A., 484 F.2d 843, 4th Cir., (1973); in Rural Housing Alliance v. U. S. Department of Agriculture, 162 U.S.App.D.C. 122, 126, 498 F.2d 73, 77 (1974); in Getman v. N. L. R. B., 146 U.S. App.D.C. 209, 213, 450 F.2d 670, 674 (1971); and in Committee on Masonic Homes, etc., v. N. L. R. B., 556 F.2d 214, 3rd Cir., (1977). Following this procedure and these guidelines in the instant case, we must determine under the first step whether or not the union cards are personnel, medical or similar files. They are clearly not medical files or similar to medical files, and this is conceded by the majority. In my opinion, the cards are not personnel files, as they do not contain information normally included in personnel files. The Supreme Court pointed out in Department of Air Force v. Rose, supra, that the requested records in that case were not personnel files, saying: “Moreover, even if we were to agree that ‘personnel files’ are wholly exempt from any disclosure under Exemption 6, it is clear that the case summaries sought here lack the attributes of ‘personnel files’ as commonly understood.” “ - - _ [T]he . _ . records do not contain the ‘vast amounts of personal data,’ S.Rep. No. 813, p. 9, which constitute the kind of" } ]

[ { "docid": "2785881", "title": "", "text": "this court satisfactory evidence' of the service of such notice, the clerk shall enter the action upon his register, and thenceforth the provisions of rule 78 of this court shall be applicable thereto,, and the same proceedings may be thereafter had as if the transcript had been filed by the party removing the case at the time prescribed by law.” ' ‘ Under prior rales, a canse, when removed from the state court, was liable to remain in the clerk’s office until the next term of the court without being entered upon his register, and the result was, in many cases, to cause undue delay. Rule 79 was therefore adopted for the sole purpose of enabling either party to “speed the cause.” . In Delbanco v. Singletary, 14 Sawy. 124, 130, 40 Fed. 177, this court, -with reference to rule 79, said: “Its sole object and purpose is to carry out the express terms of the statute for the advancement of justice and the prevention of delays\" in proceedings.” The failure to give the notice before the next term of court constitutes no ground for remanding the cause. 4. The preliminary objections being disposed of, we now reach the merits of the motion to remand. Was the petition for removal filed in time? The statute provides that, whenever any party is entitled to remove any suit “from a state court to the circuit court of the United States he may make and file a petition in such suit in such state court at the time or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff.” It is the settled law and practice of the United States circuit courts that an extension of time to answer by order of court, whether made on stipulation or not, extends the time for removal. Rycroft v. Green, 49 Fed. 177; Phenix Ins. Co. v. Charleston Bridge Co., 13 C. C. A. 58, 65 Fed. 628;" } ]

[ { "docid": "15739234", "title": "", "text": "F.2d 709 (5, 6), 713; Johnson v. Thomas, D.C., 16 F.Supp. 1013, 1014(13), 1018. And in the absence of an express grant the state courts had jurisdiction notwithstanding the cause of action was created by federal statute. Claflin v. Houseman, 93 U.S. 130, 136, 137, 23 L.Ed. 833; Robb v. Connolly, 111 U.S. 624, 635-637, 4 S.Ct. 544, 28 L.Ed. 542; Mondou v. New York, N. H. & H. R. Co., Second Employers’ Liability Cases, 223 U.S. 1, 56, 57, 58, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A.,N.S., 44; Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U.S. 481, 490, 32 S.Ct. 205, 56 L.Ed. 516; State of Missouri ex rel. St. Louis B. & M. R. Co. v. Taylor, 266 U.S. 200, 208, 45 S.Ct. 47, 69 L.Ed. 247, 42 A.L.R. 1232. The clause allowing suits to be maintained in any court of competent jurisdiction becomes meaningless unless it is interpreted as amendatory of the Removal Statute and preventing removal. Courts should not interpret a statute so as to make parts of it surplusage unless no other construction is reasonably possible; a construction which would render a section or clause superfluous is to be avoided. While Congress may express itself tautologically a conclusion or interpretation that it has done so is to be avoided if fairly possible. There are other considerations moving to the same conclusion, which I briefly notice. Courts of the United States are courts of limited jurisdiction and possess no powers except those conferred expressly or by necessary implication by the Constitution or Acts of Congress. Unless demanded we should not depart from the long existing policy of Congress of restricting the federal jurisdiction. Gay v. Ruff, 292 U.S. 25, 37, 54 S.Ct. 608, 78 L.Ed. 1099, 92 A.L.R. 970. A “federal court should be as careful to avoid encroachment on a state court’s proper jurisdiction as it is vigilant in protecting its own”. Siler v. Morgan Motor Co., 15 F.Supp. 468, 469 (12), 472; Fitzgerald v. Missouri Pac. R. Co., C.C., 45 F. 812, quoted in Eddy v. Chicago & N. W." }, { "docid": "15739233", "title": "", "text": "in any court of competent jurisdiction are emptied of all meaning, and they, become mere surplusage or idle words. This is so because no legislation was needed to vest either federal or state courts with jurisdiction. They both had it under the general federal jurisdictional laws, or general rules of jurisprudence. The federal courts had jurisdiction under Sec. 24(8) of the Judicial Code, 28 U.S.C.A. § 41(8), without regard to the amount in controversy, Mulford v. Smith, supra; Williams v. Jacksonville Terminal Co., 315 U.S. 386, 390, 62 S.Ct. 659, 86 L.Ed. 914; Robertson v. Argus Hosiery Mills, supra, and if the jurisdictional amount was present they had jurisdiction also under 28 U.S.C.A. § 41(1), as a suit arising under the laws of the United States, provided a federal question was properly presented by the plaintiff’s pleadings. Gully v. First Nat. Bk., 299 U.S. 109, 112-116, 57 S.Ct. 96, 81 L.Ed. 70; Peyton v. Ry. Express Agency, 316 U.S. 350, 62 S.Ct. 1171, 86 L.Ed. 1525; Barnhart v. Western Maryland Ry. Co., 4 Cir., 128 F.2d 709 (5, 6), 713; Johnson v. Thomas, D.C., 16 F.Supp. 1013, 1014(13), 1018. And in the absence of an express grant the state courts had jurisdiction notwithstanding the cause of action was created by federal statute. Claflin v. Houseman, 93 U.S. 130, 136, 137, 23 L.Ed. 833; Robb v. Connolly, 111 U.S. 624, 635-637, 4 S.Ct. 544, 28 L.Ed. 542; Mondou v. New York, N. H. & H. R. Co., Second Employers’ Liability Cases, 223 U.S. 1, 56, 57, 58, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A.,N.S., 44; Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U.S. 481, 490, 32 S.Ct. 205, 56 L.Ed. 516; State of Missouri ex rel. St. Louis B. & M. R. Co. v. Taylor, 266 U.S. 200, 208, 45 S.Ct. 47, 69 L.Ed. 247, 42 A.L.R. 1232. The clause allowing suits to be maintained in any court of competent jurisdiction becomes meaningless unless it is interpreted as amendatory of the Removal Statute and preventing removal. Courts should not interpret a statute so as to make parts" }, { "docid": "8466494", "title": "", "text": "in that State and appointed an agent for the service of process therein, it thereby consents to be sued in the courts of such State, both state and federal. The authorities are clear that a federal district court within such State is a court of that State within the consent granted. Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 443, 66 S.Ct. 242, 90 L.Ed. 185; Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4, 6-7, 60 S.Ct. 215, 84 L.Ed. 537; Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167-168, 60 S.Ct. 153, 84 L.Ed. 167. It. is equally well settled, however, that the mere grant of consent to be sued in the courts of a State by a foreign corporation as a condition on the right to do business therein, does not operate to deprive such corporation of its right to remove a cause brought against it in a court of that State to a federal court within thát State. Mere compliance with statutes regulatory of the right of foreign corporations to do business within a State do not work a forfeiture of the right to remove when the prerequisite conditions therefor exist. The decisions uniformly hold that it is beyond the power of the States to impair the right to remove a cause on diversity grounds when the removal is timely and diversity does in fact exist. A statute which in terms purported to effect such a result would be unconstitutional. Harrison v. St. Louis & S. F. R. Co., 232 U.S. 318, 34 S.Ct. 333, 58 L.Ed. 621; Herndon v. Chicago, R. I. & P. Ry., 218 U.S. 135, 30 S.Ct. 633, 54 L.Ed. 970; Southern Railway Co. v. Allison, 190 U.S. 326, 23 S.Ct. 713, 47 L.Ed. 1078; Stewart v. Ferer, 10 Cir., 163 F.2d 183, 185. Plaintiff, in the instant case, urges that compliance with Section 38 of the Corporation Law of Puerto Rico, by defendant Corporation, constituted a waiver of its right to remove a cause from the insular to the federal courts. That a defendant may waive the" }, { "docid": "22445368", "title": "", "text": "GOODRICH, Circuit Judge. This action is brought to recover treble damages for alleged violation by the defendants of the Sherman and Clayton Anti-Trust Acts. 15 U.S.C.A. § 1 et seq. Suit was filed in the District Court of New Jersey. That court granted the plaintiff’s petition for process and ordered the respective United States Marshals to serve the defendants in the districts wherein they resided, all outside the District of New Jersey. This was done on October 17, 18 and 21, 1940 respectively for various of the defendants. On November 7, the first of two stipulations was entered into by counsel for all parties, extending the time “within which the said defendants may answer or otherwise move with respect to the Complaint herein, * * The second stipulation postponed the date still further. The stipulations were duly filed with the Clerk of the District Court However, there was no order of the court allowing or disallowing either stipulation. Within the extended period the defendants filed a motion to dismiss the complaint on the basis of the venue being improperly laid. This motion was granted by the District Court and the plaintiff appeals. Under the statute a defendant is to be sued in the district in which he is an inhabitant. The defendants’ objection to venue, therefore, is well taken unless they have lost it. On argument and re-argument the question submitted for determination was whether the stipulations for the extension of time entered into on behalf of the defendants had lost them their right to object to the venue. This issue assumed that the stipulations were effective and binding upon the parties and the court. We believe this assumption was erroneous. Rule 6(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that when “an act is required or allowed to be done at or within a specified time [under the Rules], the court for cause shown may, at any time in its discretion” enlarge the time limit, if the request therefor is made before the original period expires, or if later, upon a showing of" }, { "docid": "11094300", "title": "", "text": "cases since. Canal, etc., R. R. Co. v. Hart, 114 U.S. 654, 5 S.Ct. 1127, 29 L.Ed. 226; Martin’s Administrator v. Baltimore & Ohio R. R. Co., 151 U.S. 673, 14 S.Ct. 533, 38 L.Ed. 311; Powers v. Chesapeake & Ohio R. R. Company, 169 U.S. 92, 93, 18 S.Ct. 264, 266, 42 L.Ed. 673. Mr. Justice Gray in the last case cited said: “The existence of diverse citizenship, or other equivalent condition of jurisdiction, is fundamental. The want of it will be taken notice of by the court in its own motion, and cannot be waived by either party. Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 4 S.Ct. 510 [28 L.Ed. 462], But the time of filing a petition for removal is not essential to the jurisdiction. The provision on that subject is, in the words of Mr. Justice Bradley, ‘but modal and formal,’ and a failure to comply with it may be the subject of waiver or estoppel. * * * “As the time within which a removal must be applied for is not jurisdictional, but modal and formal (Ayers v. Watson, 113 U.S. 594, 598, 5 S.Ct. 641 [28 L.Ed. 1093]), it may, though obligatory to a certain extent, be waived.” A number of the inferior courts mostly before the case of Ayers v. Watson, 113 U.S. 594, 5 S.Ct. 641, 28 L.Ed. 1093, held that the time for filing the petition for removal from the state to the federal court could not be extended by stipulation of the parties, but this position does not seem to be in harmony with!-the declarations of the Supreme Court. These declarations led to the change of the position in the Southern District of New York. In the case of Anthony, Inc., v. National Broadcasting Co., Inc. (D.C.) 8 F.Supp. 346, the court said: “The extensions of time to answer which were signed by the plaintiff’s attorney extended also the time within which the case might be removed. There was a time when the rule in this district was otherwise. Schipper v. Consumer Cordage Co. (C.C.)" }, { "docid": "13362900", "title": "", "text": "it certainly has been shown to be that of this court. Chicago & Northwestern Ry. Co. v. Whitton, 13 Wall. 270, 20 L.Ed. 571; Muller v. Dows, 94 U.S. 444, 24 L.Ed. 207; Memphis & Charleston R. R. Co. v. Alabama, 107 U.S. 581, 2 S.Ct. 432, 27 L.Ed. 518; Quincy Railroad Bridge Co. v. County of Adams, 88 Ill. 615; Winn v. Wabash R. Co. [C.C.] 118 F. 55. What would be the law in case of a suit brought in Illinois upon a cause of action which arose in Ohio is a question that may be left on one side, as also may be the decisions in cases where a corporation originally created in one state afterwards becomes compulsorily a corporation of another state for some purposes in order to extend its powers. Southern Ry. Co. v. Allison, 190 U.S. 326, 23 S.Ct. 713, 47 L.Ed. 1078; St. Louis & San Francisco Ry. Co. v. James, 161 U.S. 545, 16 S.Ct. 621, 40 L.Ed. 802. In the case at bar the incorporations must be taken to have been substantially simultaneous and. free. See Memphis & Charleston R. R. Co. v. Alabama, supra [107 U.S. 581, 2 S.Ct. 432, 27 L.Ed. 518]. If any distinction were to be made it hardly could be adverse to the jurisdiction of Illinois, in view of the requirements of its Constitution and statutes, that a majority of the directors- should be residents of Illinois, and that the corporation should keep a general office in that state. We are of opinion that the defendant must be regarded in this suit as a citizen of Illinois, and therefore as having had no right to remove. It follows that the cause should be remanded to the state court.” It is certainly true that the acts of incorporation of North Carolina and Virginia, passed in connection with the mergers or consolidations described above, were substantially simultaneous in point of time and devoid of any element of compulsion. The case is therefore distinguishable from St. Louis & San F. Ry. Co. v. James and Southern Railway Co. v." }, { "docid": "8466495", "title": "", "text": "foreign corporations to do business within a State do not work a forfeiture of the right to remove when the prerequisite conditions therefor exist. The decisions uniformly hold that it is beyond the power of the States to impair the right to remove a cause on diversity grounds when the removal is timely and diversity does in fact exist. A statute which in terms purported to effect such a result would be unconstitutional. Harrison v. St. Louis & S. F. R. Co., 232 U.S. 318, 34 S.Ct. 333, 58 L.Ed. 621; Herndon v. Chicago, R. I. & P. Ry., 218 U.S. 135, 30 S.Ct. 633, 54 L.Ed. 970; Southern Railway Co. v. Allison, 190 U.S. 326, 23 S.Ct. 713, 47 L.Ed. 1078; Stewart v. Ferer, 10 Cir., 163 F.2d 183, 185. Plaintiff, in the instant case, urges that compliance with Section 38 of the Corporation Law of Puerto Rico, by defendant Corporation, constituted a waiver of its right to remove a cause from the insular to the federal courts. That a defendant may waive the right to remove a cause is conceded, but the intent to so waive and to submit to the jurisdiction of the State court must be clear and unequivocal. Where it is sought to show an intent to waive the right to remove from the actions of a defendant, the actions relied upon must be clearly inconsistent with a purpose to pursue the right to remove. McMillen v. Indemnity Insurance Co., D.C., 8 F.2d 881; Duvall v. Wabash Ry. Co., D.C., 9 F.2d 83; Houlton Savings Bank v. American Laundry Machinery Co., D.C., 7 F.Supp. 858; State, on Inf. of McKittrick ex rel. City of Trenton, Mo. v. Missouri Public Service Co., D.C., 25 F.Supp. 690. Compliance by a foreign corporation with the provisions of a statute regulating the right to do business in a State, standing alone, is insufficient to establish1 an intent on the part of such corporation to waive its right to remove a cause from the State to a federal court. Southern Railway Co. v. Allison, supra; St. Louis & S. F." }, { "docid": "18112016", "title": "", "text": "by the court extending the time of the defendant to plead to the complaint of the plaintiff was entirely unnecessary. The stipulation under the decisions of the New York courts was just as effective and binding as an order would have been. Orders extending the time to plead are only made on affidavits and where the court directs the extension of time. If the parties consent and agree in writing that the time be extended, it is extended, and the party signing the stipulation can only escape from the effect of the stipulation by showing fraud or collusion, and then the court must act. 1 Rumsey’s Practice, 221, 222. It is well settled in the Second Circuit that an extension of time to answer by an order entered in the state court ex tends the time for filing, a petition for removal. Lord v. Lehigh Val. R. Co. (C. C.) 104 Fed. 929. See the numerous cases_ there cited. In Chiatovich v. Hanchett et al. (C. C.) 78 Fed. 193, it was held: “Where a stipulation, signed by a party or bis attorney or counsel, is of binding force, a cause may be removed from a state to a federal court within the period to which the defendant’s time to answer is extended by a written stipulation, though no order of court is entered thereon.” In that case the court said (page 195): “It is the settled law and practice of the United States Circuit Courts that an extension of time to answer by order of court, whether made on stipulation or not, extends the time for removal. * * * [Citing cases.] This point is conceded by the plaintiff; but his contention is that a mere stipulation of counsel, without any order of the court, is insufficient to extend the time for a removal, and cites authorities in support of this proposition. Martin v. Carter (C. C.) 48 Fed. 596; Schipper v. Cordage Co. (C. C.) 72 Fed. 803. But the question depends solely upon what ‘is required by the laws of the state or the rule of the" }, { "docid": "7426077", "title": "", "text": ". The Missouri Pacific Ry. v. Castle, 1912, 224 U.S. 541, 32 S.Ct. 606, 56 L.Ed. 875; Martin’s Adm’r v. B. & O. R. R. Co., 1894, 151 U.S. 673, 14 S.Ct. 533, 38 L.Ed. 311; Goodlett v. Louisville & Nashville R. R., 1887, 122 U.S. 391, 7 S.Ct. 1254, 30 L.Ed. 1230; Pennsylvania R. R. v. St. Louis, Alton & Terre Haute R. R., 1886, 118 U.S. 290, 6 S.Ct. 1094, 30 L.Ed. 83; Atlantic Coastline R. Co. v. Dunning, 4 Cir., 1908, 166 F. 850. . See Southern Ry. v. Allison, 1903, 190 U.S. 326, 338, 23 S.Ct. 713, 47 L.Ed. 1078; Nashua & Lowell Ry. v. Boston & Lowell Ry., 1890, 136 U.S. 356, 372, 375, 382, 10 S.Ct. 1004, 34 L.Ed. 363; Ohio & Miss. R. Co. v. Wheeler, 1861, 1 Black 286, 297, 17 L.Ed. 130. . See Patch v. Wabash R. Co., 1907, 207 U.S. 277, 283, 28 S.Ct. 80, 52 L.Ed. 204; Louisville, New Albany & Chicago Ry. v. Louisville Trust Co., 1899, 174 U.S. 552, 563, 19 S.Ct. 817, 43 L.Ed. 1081; Memphis & Charleston R. Co. v. State of Alabama, 1882, 107 U.S. 581, 585, 2 S.Ct. 432, 27 L.Ed. 518; Muller v. Dows, 1876, 94 U.S. 444, 447, 24 L.Ed. 207; Chicago & N. W. Railway Co. v. Whitton, 1871, 13 Wall. 270, 283, 20 L.Ed. 571. . Peterborough R. R. v. Boston & M. R. R., 1 Cir., 1917, 239 F. 97; Geoffroy v. New York, N. H. & H. R. Co., 1 Cir., 1927, 16 F.2d 1017; Missouri Pac. Ry. v. Meeh, 8 Cir., 1895, 69 F. 753. The Fourth Circuit has also taken a contrary position where the two-state corporation was plaintiff. Town of Bethel v. Atlantic Coast Line R. Co., 4 Cir. 1936, 81 F.2d 60, certiorari denied, 1936, 298 U.S. 682, 56 S.Ct. 952, 80 L.Ed. 1402. Cf. Starke v. New York, Chicago & St. Louis R. Co., 7 Cir., 1950, 180 W.2d 569. See also, Lucas v. New York Cent. R. Co., D.C.S.D.N.Y.1950, 88 F.Supp. 536; Murphy v. Hudson & Manhattan R. Co., D.C.E.D.N.Y.1942," }, { "docid": "18112008", "title": "", "text": "the date of issue shall be the same as though the answer had been served when the time to answer .first expired. When the time to serve any pleading has been extended by stipulation or order for twenty days, no further time shall be granted by order, except upon two days’ notice to the adverse party of the application for such order.” That rule applies to applications to the court for an order extending the time to plead made on affidavits. In such cases, if an extension has been had by order or stipulation, the motion is on notice, and the issue remains as of the date when the pleading was first due. If no extension has been had, no notice is given. The provision as to the date of issue is made to prevent the case taking a low place on the calendar because óf favors granted to the defendant. Rule 11 of the general rules of practice recognizes stipulations and written consents when in writing and duly signed. That rule is as follows: “No private agreement or consent between the parties or their attorneys, in respect to the proceedings in a cause, shall be binding, unless the same shall have been reduced to the form of an order by consent, and entered, or unless the evidence thereof shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel.” This rule is a declaration that the stipulations signed by the plaintiff’s attorneys in this case were and are valid and binding. If valid and binding, they extend the time of the defendant to plead to the complaint—to answer or demur thereto, to plead in abatement; or to the issue or to the jurisdiction; in short, to make any authorized plea. In the courts of the state written stipulations are always enforced and held binding, subject, of course, to the power of the court to relieve the party therefrom for cause. Clason v. Baldwin, 152 N. Y. 204-210, 46 N. E. 322; Hine v. N. Y. El. R. R. Co.," }, { "docid": "1693016", "title": "", "text": "Court, premising jurisdiction on her attachment of an insurance policy issued to the Hospital by the Continental Insurance Co., a resident of New York, under the authority of Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966), a decision permitting the exercise of personal jurisdiction through quasi-in-rem attachment of insurance policies issued by resident insurers. After successfully petitioning to remove this case to the United States District Court for the Southern District of New York on September 24, 1976, the Hospital filed its answer on October 15, two months before New Jersey’s two-year statute of limitations was due to expire. Among other allegations, the answer urged as a second affirmative defense the following: “This Court, and the Court from which this action was removed, lacked jurisdiction over the person of the defendant.” The Hospital then sought to vacate the attachment and dismiss the complaint on the ground that Mrs. Holzsager was not a bona fide resident of New York when she instituted suit and was therefore not entitled to invoke Seider v. Roth jurisdiction by attachment. This motion was denied upon receipt of an affidavit satisfying the court that Holzsager had become a bona fide resident. The Hospital then successfully moved to have the case transferred to the District Court for the District of New Jersey for the purpose of impleading Dr. Warburton, who had moved to California but remained within the reach of New Jersey’s long-arm statute. After impleading Dr. Warburton, the Hospital joined the doctor in moving to dismiss the action for lack of subject matter jurisdiction, pointing out that the New Jersey $10,000 limitation on charitable organizations’ liability made the jurisdictional amount requirement for diversity jurisdiction, 28 U.S.C. § 1332, unreachable. New Jersey District Judge H. Curtis Meanor granted this motion, acknowledging that objections to subject matter jurisdiction are non-waivable and can be raised at any time. See F.R.Civ.P. 12(h)(3). However, because he was reluctant to dismiss the federal case on the Hospital’s motion when the case had been removed to federal court in the first place on the assumption that federal subject" }, { "docid": "15617007", "title": "", "text": "of the state court,” as used in the Removal Act ? . The decisions of the Circuit and District Courts oí the United States upon this question are not in harmony, and cannot easily be reconciled. In some of such decisions it is held that, when the state court in its discretion extends the time fixed by the statute in which the defendant shall answer or plead to the petition in a state court, when authorized by law to grant such extension, such extension, when granted, is a “rule of court” within the meaning of the Removal Act, and that a removal may be had within such enlarged period. Among the causes so holding are Rycroft v. Green (C. C.) 49 Fed. 177; Wilcox & Gibbs Co. v. Phœnix Insurance Co. (C. C.) 60 Fed. 929; Lord v. Lehigh Valley Railroad Co. (C. C.) 104 Fed. 929; Dancel v. Goodyear Shoe Machinery Co. (C. C.) 106 Fed. 551, and other cases. Rycroft v. Green, above, was decided without discussion, and upon the practice then said to obtain in the New York courts. That case, however, is distinguished, and in part, at least, overruled, by the same court in Schipper v. Consumer Cordage Co. (C. C.) 72 Fed. 803. In Wilcox & Gibbs Co. v. Phœnix Insurance Co., above, it is held in a case coming from a state court in South Carolina that the right to remove such a suit exists as long as the defendant is not in default in the state court for want of an answer or other pleading to the plaintiff’s petition; and if defendant obtains an order of the state court extending the time in which he may answer or otherwise plead to the plaintiff’s petition, the cause may rightly be removed during such extended period. This ruling seems opposed to the great weight of the authorities, and the reason given therefor is not persuasive. Pullman Palace Car Co. v. Speck, 113 U. S. 84, 5 Sup. Ct. 374, 28 L. Ed. 925, arose under the Removal Act of 1875, which required that a party" }, { "docid": "10321530", "title": "", "text": "on December 31, 1941, to ask for an extension of time to answer in the state court, the right of the defendant, or defendants, to remove the case to the federal court • had ceased to exist — at the end of the day of December 26, 1941. Any further extension of time to answer in the state court, granted by the state judge, did not extend the time for removal to the federal court. We say this in full realization (a) of the language of Section 72 afore-quoted, and (b) of the language of Article 316 of the Louisiana Code of Practice: “When the defendant appears, he may pray for further time to answer, and the court may grant a further delay, if necessary for the purposes of justice.” We believe the following extended quotation from the case of American Fountain Supply & Products, Inc., v. California Crushed Fruit Corporation, D.C. 1927, 21 F.2d 93, 94, itself containing quotations of other cases, sustains our holding: “Ruling Case Law (23 R.C.L. 742) says: ‘According to the weight of authority a stipulation of the parties extending the time to plead to the complaint or declaration does not extend the period in which a petition for removal can be made. And a majority of the courts also hold that the reference in the federal statute to the rule of the state court as to time to answer or plead relates, not to special orders granted upon application or stipulations of parties in any given case, but rather to a general rule fixing the date at which all defendants are required to appear in order to avoid being held in default’ — citing Austin v. Gagan, C.C., 39 F. 626, 5 L.R.A. 476; Wilson v. Big Joe Block Coal Co., 135 Iowa 531, 113 N.W. 348, 14 Ann.Cas. 266; Nichols v. Stevens, 123 Mo. 96, 25 S.W. 578, 27 S.W. 613, 45 Am.St.Rep. 514. “The Supreme Court of the United States, in the case of Kansas City, etc., Railroad Co. v. Daughtry, 138 U.S. 298, 303, 11 S.Ct. 306, 308, 34 L.Ed. 963," }, { "docid": "11094299", "title": "", "text": "order, if the time be extended by order of court, or until the time fixed by stipulation, if the other party sees fit to stipulate in writing that he need not answer or plead until a fixed day. The New York courts and rules recognize stipulation of this character, and in the absence of fraud or mistake hold the parties to them bound thereby.” There are numerous cases so holding, and they are in accord with the plain interpretation of the statute indicated by the Supreme Court. Mr. Justice Bradley, speaking for the Supreme Court in the case of Ayers v. Watson, 113 U.S. 594, 5 S.Ct. 641, 28 L.Ed. 1093; said that section 28 (28 U.S.C.A. § 71), conferring jurisdiction and defining what cases may be removed, was essential, belonging to the essence of the thing, but section 29 (28 U.S.C.A. § 72), providing the method and time of removal, was modal, procedural, and might be waived by the parties expressly or by implication. This interpretation of the statute has been restated in many cases since. Canal, etc., R. R. Co. v. Hart, 114 U.S. 654, 5 S.Ct. 1127, 29 L.Ed. 226; Martin’s Administrator v. Baltimore & Ohio R. R. Co., 151 U.S. 673, 14 S.Ct. 533, 38 L.Ed. 311; Powers v. Chesapeake & Ohio R. R. Company, 169 U.S. 92, 93, 18 S.Ct. 264, 266, 42 L.Ed. 673. Mr. Justice Gray in the last case cited said: “The existence of diverse citizenship, or other equivalent condition of jurisdiction, is fundamental. The want of it will be taken notice of by the court in its own motion, and cannot be waived by either party. Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 4 S.Ct. 510 [28 L.Ed. 462], But the time of filing a petition for removal is not essential to the jurisdiction. The provision on that subject is, in the words of Mr. Justice Bradley, ‘but modal and formal,’ and a failure to comply with it may be the subject of waiver or estoppel. * * * “As the time within which a removal" }, { "docid": "11094302", "title": "", "text": "72 F. 803. But for more than thirty years it has been held consistently here that a stipulation to extend the defendant’s time to-answer signed by the attorneys operated to extend the time for removal to the federal court.” . Rose on Federal Jurisdiction and Procedure (4th Ed.) p. 403, says: “In the Circuit and District courts, some of the earliest cases holding that the time was not extended, were decided before the Court of last resort held that the requirement as to the time for removal was not of the essence of the jurisdiction, and then-reasoning seems to have given to- that provision of the statute greater rigidity than can now be attributed to it, * * “In the Second Circuit it has been long settled that the petition for removal is in time if filed before the expiration of any extension to plead given by special order of the Court, or by stipulation of the parties.” And at page 404: “The Author’s personal opinion is that the Second Circuit’s rule would seem to be more in harmony with the views of the Supreme Court.” The statute refers to the time when the answer must be filed, and this time may be fixed by statute, rule of court, or stipulation of the parties. The provisions are procedural, and the statute does not refer to. any particular period of time or number of days, but to the actual filing of the answer, and, if the petition for removal is filed before or at that time, it is filed within the time required by the statute. While the order remanding the cause to the state court is not reviewable by appeal or mandamus (section 28, Judicial Code, 28 U.S.C.A. § 71; In re Pennsylvania Company, 137 U.S. 451, 11 S.Ct. 141, 34 L.Ed. 738; In re Matthew Addy S. S. & Commerce Corporation, 256 U.S. 417, 41 S.Ct. 508, 65 L.Ed. 1027; Liggett Co. v. Baldridge, Attorney General, 278 U.S. 105, 49 S.Ct. 57, 73 L.Ed. 204), we have thought it best to state what we think the law is and" }, { "docid": "11094298", "title": "", "text": "It said: “The petition for the removal of a case from the state court to the federal court should be filed before the defendant is required to file an affidavit of defense. Where the parties to a cause agree that the time within which an affidavit of defense may be filed shall be extended, the time within which the case may be removed to the federal court is also extended for the same time.” Judge Ray in the Northern District of New York, in the case of Hinman v. Barrett (D.C.) 244 F. 621, 623, said: “The plaintiff claims that there was no removal of the cause because of this defect in the petition, and for the reason the removal should have been made within 20 days of the service of the summons and complaint, as under the New York Code of Civil Procedure a defendant, in case of personal service, as here, is required to plead within that time. But a defendant is not required by law to plead until the time fixed by order, if the time be extended by order of court, or until the time fixed by stipulation, if the other party sees fit to stipulate in writing that he need not answer or plead until a fixed day. The New York courts and rules recognize stipulation of this character, and in the absence of fraud or mistake hold the parties to them bound thereby.” There are numerous cases so holding, and they are in accord with the plain interpretation of the statute indicated by the Supreme Court. Mr. Justice Bradley, speaking for the Supreme Court in the case of Ayers v. Watson, 113 U.S. 594, 5 S.Ct. 641, 28 L.Ed. 1093; said that section 28 (28 U.S.C.A. § 71), conferring jurisdiction and defining what cases may be removed, was essential, belonging to the essence of the thing, but section 29 (28 U.S.C.A. § 72), providing the method and time of removal, was modal, procedural, and might be waived by the parties expressly or by implication. This interpretation of the statute has been restated in many" }, { "docid": "11094301", "title": "", "text": "must be applied for is not jurisdictional, but modal and formal (Ayers v. Watson, 113 U.S. 594, 598, 5 S.Ct. 641 [28 L.Ed. 1093]), it may, though obligatory to a certain extent, be waived.” A number of the inferior courts mostly before the case of Ayers v. Watson, 113 U.S. 594, 5 S.Ct. 641, 28 L.Ed. 1093, held that the time for filing the petition for removal from the state to the federal court could not be extended by stipulation of the parties, but this position does not seem to be in harmony with!-the declarations of the Supreme Court. These declarations led to the change of the position in the Southern District of New York. In the case of Anthony, Inc., v. National Broadcasting Co., Inc. (D.C.) 8 F.Supp. 346, the court said: “The extensions of time to answer which were signed by the plaintiff’s attorney extended also the time within which the case might be removed. There was a time when the rule in this district was otherwise. Schipper v. Consumer Cordage Co. (C.C.) 72 F. 803. But for more than thirty years it has been held consistently here that a stipulation to extend the defendant’s time to-answer signed by the attorneys operated to extend the time for removal to the federal court.” . Rose on Federal Jurisdiction and Procedure (4th Ed.) p. 403, says: “In the Circuit and District courts, some of the earliest cases holding that the time was not extended, were decided before the Court of last resort held that the requirement as to the time for removal was not of the essence of the jurisdiction, and then-reasoning seems to have given to- that provision of the statute greater rigidity than can now be attributed to it, * * “In the Second Circuit it has been long settled that the petition for removal is in time if filed before the expiration of any extension to plead given by special order of the Court, or by stipulation of the parties.” And at page 404: “The Author’s personal opinion is that the Second Circuit’s rule would seem to" }, { "docid": "18112019", "title": "", "text": "People’s Bank v. Ætna Ins. Co. (C. C.) 53 Fed. 161.” To the same effect is Allmark v. Platte S. S. Co. (C. C.) 76 Fed. 614. The Code of Civil Procedure of the state of New York authorizes the making of rules by the Supreme Court, and these rules have all the force of statute. Section 17, Code Civ. Proc. These rules recognize stipulations, as we have seen, and, as the stipulations, referred to were made, and the defendant’s time to plead to the complaint was thereby extended to and including the 10th day of January, 1905, and the removal papers in due form were filed ‘in the Supreme Court on the 30th day of December, 1904, after having been presented to that court, and after the. court had approved the bond, the proceeding for removal was in time, and the causé was properly removed to the Circuit Court of the United States. It seems clear to this court that the written stipulation, extending the time of the defendant to plead to a certain day, estopped the plaintiff from saying in the proceeding to remove the cause that the time in which defendant was required to answer or plead to the complaint had expired before the arrival, of the day named in such stipulation. The general appearance of the defendant did not operate as a waiver of its right to remove. Stevens v. Richardson et al. (C. C.) 9 Fed. 195; Gavin v. Vance (C. C.) 33 Fed. 84; Conner v. Skagit Cumberland Coal Co. (C. C.) 45 Fed. 802; Duncan v. Associated Press (C. C.) 81 Fed. 417; Whiteley M. C. Co. v. Sterlingworth Ry. Supply Co. (C. C.) 83 Fed. 853; Champlain Const. Co. v. O’Brien (C. C.) 104 Fed. 930; Atlanta K. & N. Ry. Co. v. Southern Ry. Co. (C. C. A.) 131 Fed. 657. Indeed, the plaintiff’s attorney does not claim the contrary. The motion to remand is denied." }, { "docid": "13362899", "title": "", "text": "the facts alleged. The Supreme Court held that if the Railroad Company was to be regarded as a citizen of Illinois, the right of removal did not exist. It said: “Therefore the question is raised how a corporation or corporations thus organized shall be regarded for the purposes of a suit like this. No nice speculation as to whether the corporation is one or many, and no details as to the particulars of the consolidation,. are needed for an answer. The defendant exists in Illinois by virtue of the laws of Illinois. It is alleged to have incurred a liability under the laws of the same state, and is sued in that state. It cannot escape the jurisdiction by the fact that it is incorporated elsewhere. The assent of the state to such incorporation elsewhere, supposing it to have been given,— a matter upon which we express no opinion, —cannot be presumed to have intended or to import such a change. This seems to be , the opinion of the supreme court of Illinois, as it certainly has been shown to be that of this court. Chicago & Northwestern Ry. Co. v. Whitton, 13 Wall. 270, 20 L.Ed. 571; Muller v. Dows, 94 U.S. 444, 24 L.Ed. 207; Memphis & Charleston R. R. Co. v. Alabama, 107 U.S. 581, 2 S.Ct. 432, 27 L.Ed. 518; Quincy Railroad Bridge Co. v. County of Adams, 88 Ill. 615; Winn v. Wabash R. Co. [C.C.] 118 F. 55. What would be the law in case of a suit brought in Illinois upon a cause of action which arose in Ohio is a question that may be left on one side, as also may be the decisions in cases where a corporation originally created in one state afterwards becomes compulsorily a corporation of another state for some purposes in order to extend its powers. Southern Ry. Co. v. Allison, 190 U.S. 326, 23 S.Ct. 713, 47 L.Ed. 1078; St. Louis & San Francisco Ry. Co. v. James, 161 U.S. 545, 16 S.Ct. 621, 40 L.Ed. 802. In the case at bar the incorporations must" }, { "docid": "262208", "title": "", "text": "court’s discretion the decision to enlarge the time in which a party must perform an act required or allowed by the Federal Rules of Civil Procedure, so this court reviews such decisions for an abuse of discretion. Kyle v. Campbell Soup Co., 28 F.3d 928, 930 (9th Cir.), cert. denied, — U.S. -, 115 S.Ct. 185, 130 L.Ed.2d 119 (1994). Commonwealth’s initial request for an extension was filed in state court before the deadline for the filing of its answer expired, Haw. R. Civ. P. 12(a), and the state court had discretion to grant the extension “for cause shown”, Haw. R. Civ. P. 6(b)(1). While the request was pending, Commonwealth removed the case to federal court. The longstanding principle is that “[a]fter removal, the federal court ‘takes the case up where the State court left it off”, Granny Goose Foods, Inc. v. Brotherhood of Teamsters Local 70, 415 U.S. 423, 436, 94 S.Ct. 1113, 1122, 39 L.Ed.2d 435 (1974) (quoting Duncan v. Gegan, 101 U.S. 810, 812, 25 L.Ed. 875 (1880)). See also Butner v. Neustadter, 324 F.2d 783, 785 (9th Cir.1963); Saveli v. Southern Ry. Co., 93 F.2d 377, 379 (5th Cir.1937) (“When a case is removed the federal court takes it as though everything done in the state court had in fact been done in the federal court”). Therefore Commonwealth’s request for an extension in state court before the state deadline for Commonwealth’s answer had passed was properly treated, upon removal, as a pending motion filed before the deadline for Commonwealth’s answer in federal court. Thus, because Commonwealth’s request for an extension of the period in which to file its answer to Jenkins’ complaint was “made before the expiration of the period originally prescribed” for the filing, the district court had the discretion to extend the deadline “for cause shown”. Fed.R.Civ.P. 6(b)(1). The district court did not abuse its discretion in enlarging the time for the filing of Commonwealth’s answer “for cause shown” under Rule 6(b)(1). Commonwealth’s attorney submitted declarations indicating (1) that she had requested that Jenkins’ stipulate to an extension but that he had refused, (2)" } ]

[ { "docid": "6652479", "title": "", "text": "percentage of stock holdings militate against an inference of scienter. See, e.g., Acito, 47 F.3d at 54 (sale of 11% of defendant’s holdings not unusual); In re Glenayre, 1998 WL 915907 at *4, 1998 U.S. Dist. LEXIS 20344 at *12 (no inference of scienter where sales represented 5% of cumulative stock holdings); In re Health Mgmt., 1998 WL 283286 at *6 & n. 3, 1998 U.S. Dist. LEXIS 8061 at *18 & n. 3 (sales during class period rangng from 3% to 81.9% of holdings not suspicious when viewed in light of other relevant factors). Plaintiffs allegations fail to raise the requisite strong inference of scienter based on the Individual Defendants’ motive and opportunity. First, the value and volume of shares that the Individual Defendants sold as compared to their total holdings was not unusual and does not raise a strong inference of scienter. WTdle Plaintiffs allege that the Individual Defendants’ insider sales amounts to $96 million in gross proceeds during the Class Period, they fail to allege any facts relating to the amount of profit the Individual Defendants garnered from their sales. See In re Scholastic, 252 F.3d at 74-75. The Individuals Defendants’ sales were also relatively small in volume compared to overall holdings. Taking into account their complete portfolios of shares, the stock sales amounted to only 22.5% and 4.9% of Chamandy’s and Sellyn’s holdings, respectively. Moreover, all insider sales alleged in the Complaint occurred on or before December 21, 2007, far in advance of the January 30 press release increasing the earnings projections and the April 29 announcement allegedly revealing the “truth” about the Company’s problems. Thus, Plaintiffs’ allegations are empty vessels, as the trades occurred weeks before the principal allegation of material misstatement, and many months before the release of any negative information that caused Gildan’s stock price to plummet. See, e.g., In re Take-Two Interactive Sec. Litig., 551 F.Supp.2d 247 (S.D.N.Y.2008) (lapse of “approximately four months between these substantial sales and the revelation of the alleged falsity[ ] inescapably attenuates any inference of scienter”); In re Keyspan Corp. Sec. Litig., 383 F.Supp.2d 358, 385 (E.D.N.Y.2003)" } ]

[ { "docid": "20330286", "title": "", "text": "to the required inference of scienter.” Green Tree, 270 F.3d at 659. In this case, insider stock sales by the individual Defendants during the Class Period were not unusual or suspicious. “When evaluating stock sales, ... the proportion of shares actually sold by an insider to the volume of shares he could have sold is probative of whether the sale was unusual or suspicious.” In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir.1999). Defendants note that during the Class Period, Defendant Hawkins sold 1% of his stock holdings, Defendant Ellis sold .2% of his holdings, and Defendant Collins sold 14% of his holdings. (Def. Mem. at 33-34.) These percentages, standing alone, are insufficient to establish a strong inference of scienter. See Navarre, 299 F.3d at 747 (noting that sales of ten percent and thirty-two percent of an insider’s stock holdings, standing alone, is insufficient to establish a strong inference of scienter). Instead of relying on such percentages, Plaintiffs claim that Defendants’ stock sales were unusual and suspicious because of the sale dates and amount of stock sold during the Class Period. (Mem. in Opp’n at 48-49.) However, the amount of stock sold by Defendants during the Class Period is insufficient to establish a strong inference of scienter. While Plaintiffs claim that “Collins’ Class Period sales were more than seven times — and Hawkins’, more than four times — their respective sales during the prior fourteen-month period” (Mem. in Opp’n at 48), Defendants note that the trading of both Hawkins and Ellis resulted in increased stock holdings during the Class Period. (Def. Mem. at 33.) When insiders increase their stock holdings during the Class Period, it weakens the allegation of suspicious insider trading. See Possis, 519 F.3d at 783. Moreover, a strong competing inference exists that Collins’ stock sales during the Class Period were not unusual or suspicious, as he was exercising stock options soon to expire, utilizing a majority of the profits derived from the stock sales to pay taxes incurred through the exercise of the options. (Def. Mem. at 35.) Stock sales done in conjunction" }, { "docid": "17518555", "title": "", "text": "raise a strong inference of scienter. In re First Union Corp. Sec. Litig., 128 F.Supp.2d 871, 897 (W.D.N.C. Jan.10, 2001) (citing Greebel, 194 F.3d at 185). In assessing whether a stock sale qualifies as extraordinary or unusual, the Court will consider the percentage of stock sold, past trading practices, and whether any other defendants also sold stock. See Baan, 103 F.Supp.2d at 19 (construing Advanta, 180 F.3d at 540-41); Marksman Partners, L.P. v. Chantad Pharm. Corp., 927 F.Supp. 1297, 1312-13 (C.D.Cal.1996); Feasby, 2000 WL 977673, at *4 n. 5. In this case, the Plaintiffs have only alleged some of the elements adequate to raise a strong inference of scienter. For example, the complaint details that Finley sold over 21,000 shares at just over $30 per share for a total of approximately $666,205. (Instrument No. 48, at ¶ 12(b)). Although the Plaintiffs have pleaded the number of shares sold, the sell price, and the alleged illegal profit obtained thereby, they have nevertheless failed to “provide! ] enough information about these sales to make them sufficient evidence of motive in themselves.” Baan, 103 F.Supp.2d at 19 (denying insider stock sales as a motive to raise a strong inference of scienter where plaintiffs failed to plead defendants’ stock sale history and percentage of stock sold); see also Marksman, 927 F.Supp. at 1312-13 (holding plaintiffs adequately pleaded scienter where defendant sold 20 percent of his stock and had not sold any in the previous 3 years). Like the insider trading allegation in Baan, the Plaintiffs in this case have failed to plead Finley’s past trading practices or the percentage of personal stock he sold. Although the Plaintiffs contend in them brief that Finley’s insider trading constituted 37 percent of his personal shares in Baker, (Instrument No. 58, at 24), that percentage figure “encompass[es] a level of particularity that does not exist in the Complaint and it is axiomatic that the Complaint cannot be amended by the briefs in opposition to a motion to dismiss.” O'Brien v. National Prop. Analysts Partners, 719 F.Supp. 222, 229 (S.D.N.Y.1989); see also Coates II, 55 F.Supp.2d at 644 n." }, { "docid": "20912740", "title": "", "text": "to indefinitely inflate eSpeed’s share price. 2. Motive and Opportunity Plaintiffs’ motive and opportunity allegations are confined to the stock sales of Amaitis and Noviello during the putative class period. But the biggest problem with these allegations is that neither Chertoff nor Lutnick (who owned thirty million eSpeed shares during the putative class period) completed any stock sales. “As [CJhairman and CEO of [eSpeed], and as the individual who actually made most of the alleged misstatements during the class period, defendant [Lutnick], if anyone, was surely well-positioned to reap profits from insider knowledge.” For this reason, the fact that neither Chertoff nor Lutnick sold stock during the putative class period undermines plaintiffs’ motive allegations against defendants. Moreover, plaintiffs’ motive allegations against Amaitis and Noviello are insufficient even when considered separately. It does not suffice to point in isolation to the combined proceeds of defendants (here, $2.8 million) and claim that this “patently significant” dollar amount alone establishes scienter. The Complaint also omits necessary information concerning (1) the percentage increase in each defendants’ holdings during the class period; and (2) the profit from defendants’ sales. In particular, plaintiffs plead that Amaitis and Noviello realized “gross proceeds” of $2.8 million, but the Complaint does not disclose whether either made any 'profit from the sales. Whether either defendant sold a significant percentage of his stock holdings is a closer issue. Plaintiffs allege that Amaitis sold 48% percent, and Noviello 88% percent, of their stock holdings during the putative class period. These percentages, however, are inaccurate because they do not account for the stock options held by Amaitis and Noviello, which must be considered along with shares actually held in determining whether insider sales are significant. Wfhen defendants’ stock options are included in the calculations, not only are the relevant percentages 8.08% (Amaitis) and 4.98% (Noviello), but in fact “each of the Individual Defendants' — Amai-tis and Noviello included — actually increased their beneficial ownership of eS- peed stock during that time.” At the same time, all stock options are not created equal. Many courts draw a distinction between options that are vested (and" }, { "docid": "8180106", "title": "", "text": "Compare ECA, 553 F.3d at 201 (finding no motive when, inter alia, alleged misstatements, which plaintiffs contended were meant to inflate stock price to make eventual acquisition of a target company easier, occurred several years prior to the acquisition and therefore could not reasonably be said to contribute to the ease of that acquisition), with In re SLM, 740 F.Supp.2d at 557-58 (finding motive when imminent merger would have been “torpedoed,” costing company $2 billion and individual defendant $225 million, if stock price were to drop below a certain level, and when fraud allegedly kept stock price above that particular level). In addition, as with the other scienter pleading requirements, “mere conclusory allegations” connecting fraud to benefits for purposes of motive are insufficient. Biovail Corp., 615 F.Supp.2d at 225. “[M]otive can be shown, however, “when corporate insiders allegedly make a misrepresentation in order to sell their own shares at a profit.’ ” In re Citigroup Inc. Sec. Litig., 753 F.Supp.2d 206, 233 (S.D.N.Y.2010) (quoting ECA 553 F.3d at 198). “However, the mere fact that insider stock sales occurred does not suffice ..., [instead] [plaintiffs must establish that the sales were ‘unusual’ or ‘suspicious.’ ” In re Gildan Activewear, Inc. Sec. Litig., 636 F.Supp.2d 261, 270 (S.D.N.Y.2009) (internal quotation marks and citation omitted). Plaintiffs must allege not only the insider defendants’ selling activity during the relevant period, but also those defendants’ net profits as opposed to gross proceeds, as well as overall percentage changes in defendants’ holdings. See In re eSpeed Sec. Litig., 457 F.Supp.2d 266, 290 (S.D.N.Y.2006) (“The Complaint also omits necessary information concerning (1) the percentage increase in each defendants’ holdings during the class period; and (2) the profit from defendants’ sales. In particular, plaintiffs plead that Amaitis and Noviello realized ‘gross proceeds’ of $2.8 million, but the Complaint does not disclose whether either made any profit from the sales.”). b. Strong Circumstantial Evidence “Where motive is not apparent, it is still possible to plead scienter by identifying circumstances indicating conscious behavior by the defendant, though the strength of the circumstantial allegations must be correspondingly greater.” In re Citigroup," }, { "docid": "13056857", "title": "", "text": "newly-added allegations, considered separately and with the original allegations, fail to remedy the deficiencies in the original consolidated class action complaint previously identified by the Court. Neither the anonymous letters nor the Holstein lawsuit is alleged to have been addressed or provided to any of the Individual Defendants; the Plaintiff does not allege that any of the Individual Defendants are named in the Holstein lawsuit, or involved in the wrongdoing alleged therein. Even viewing the allegations of scienter as a whole, the Plaintiff has not alleged sufficient circumstantial evidence of conscious misbehavior or recklessness, and so the amended consolidated class action complaint fails to allege a strong inference of scienter based on this theory. Accordingly, the Plaintiff will not be permitted to present this theory at the trial. b. Motive and Opportunity: The Defendants’ Sales of Gentiva Securities Having failed to allege facts constituting strong circumstantial evidence of conscious misbehavior or recklessness, the Plaintiff may still establish scienter by alleging facts to show that the Individual Defendants had both motive and opportunity to commit fraud. There is no question that “motive can be shown ... ‘when corporate insiders allegedly make a misrepresentation in order to sell their own shares at a profit.’ ” In re Citigroup Inc. Sec. Litig., 753 F.Supp.2d 206, 233 (S.D.NY.2010) (quoting ECA 553 F.3d at 198). “However, the mere fact that insider stock sales occurred does not suffice ..., [instead] [plaintiffs must establish that the sales were ‘unusual’ or ‘suspicious.’ ” In re Gildan Activewear, Inc. Sec. Litig., 636 F.Supp.2d 261, 270 (S.D.NY.2009) (internal quotation marks and citation omitted). “Whether trading was unusual or suspicious turns on factors including (1) the amount of net profits realized from the sales; (2) the percentages of holdings sold; (3) the change in volume of insider defendant’s sales; (4) the number of insider defendants selling; (5) whether sales occurred soon after statements defendants are alleged to know to be misleading; (6) whether sales occurred shortly before corrective disclosures or materialization of the alleged risk; and (7) whether sales were made pursuant to trading plans such as Rule 10b5-l plans.” Glaser" }, { "docid": "5861415", "title": "", "text": "two months before a negative public announcement sufficiently suspicious in timing to raise strong inference of scienter). There is no guide for determining whether certain insider trades are unusual or suspicious in amount. Large volume trades may be suspicious but where a corporate insider sells only a small fraction of his or her shares in the corporation, the inference of scienter is weakened. Acito, 47 F.3d at 54. The $78 million profit from sales by the Individual Defendants during the Class Period is, however, massive by any measure. In addition, each individual defendant sold for large profits: Wiggins for $37,400,000; Cassidy for $5,400,000; Shanahan for $3,100,000; Safirstein for $3,400,000; Smoler for $11,-100,000; Travers for $10,700,000; Sullivan for $2,700,000; Milligan for $2,100,000; Finkel for $1,700,000; and Boyd for $621,000. Other courts have found insider trades suspicious in amount where the defendant sold for far less profit. See, e.g., Rubinstein v. Collins, 20 F.3d 160, 169 (5th Cir.1994) ($760,599); Marksman Partners L.P. v. Chantal Pharm. Corp., 927 F.Supp. 1297, 1313 (C.D.Cal.1996) (twenty percent of holdings sold for $6.3 million) (citing Acito, 47 F.3d at 54). The Individual Defendants argue that the volume of sales is irrelevant because their sales were a fraction of their total net holdings for the Class Period and were typical of their trades in earlier years. The percentages of holdings sold by the Individual Defendants range from 17% to 67% for trades in November 1996, and from 11% to 100% in August 1997. These are not insignificant percentages. See, e.g., Marksman, 927 F.Supp. at 1313 (twenty percent sufficient). In addition, defendants include in their calculation of “holdings” vested options and shares gained by exercising options that were about to expire and otherwise would have been lost. First, vested options are not shares. Second, without more information, this Court cannot evaluate the true value of the options exercised by the Individual Defendants. They may have exercised options to buy at a very low price per share, in which case the shares would have been valuable to the defendants even after the stock plummeted. Finally, “retention of a large position" }, { "docid": "13109679", "title": "", "text": "Sec. Litig., 180 F.3d 525, 540 (3d Cir.1999) (stock sales did not permit an inference of scienter where three of the five individual defendants sold no stock during the class period and those who did trade, sold only small percentages of their stock); Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1224 (1st Cir.1996) (“[T]he mere fact that insider stock sales occurred does not suffice to establish scienter.”); MicroStrategy, 115 F.Supp.2d at 644. Nevertheless, if the executive officers’ stock sales were “unusual in scope or timing,” they may support an inference of scienter. See Burlington Coat Factory, 114 F.3d at 1424. Courts generally consider the following factors in analyzing allegations of insider trading: (1) whether the alleged trades were “normal or routine” for the insider; (2) whether profits reaped “were substantial enough in relation to the compensation levels for any of the individual defendants so as to produce a suspicion that they might have had an incentive to commit fraud”; and (3) whether, in light of the insider’s total stock holdings, the sales are unusual or suspicious. MicroStrategy, 115 F.Supp.2d at 644 (citing Burlington Coat Factory, 114 F.3d at 1423). There is no bright line test, however, as to the amount or percentage of stock that must be sold to constitute a “suspicious amount” — nor should there be, for, in the end, the determination of whether insider sales were “suspicious” is highly context-specific and depends on the other allegations offered in the Complaint. Courts have classified stock sales as unusual or suspicious based on a variety of factors, which include “the amount of profit from sales,” “the portion of stockholdings sold,” “the change in volume of insider sales,” “and the number of insiders selling.” See Rothman v. Gregor, 220 F.3d 81, 94 (2d Cir.2000) (citing Oxford Health Plans, 187 F.R.D. 133, 140 (S.D.N.Y.1999)) ($78 million profit from sale of 1.2 million shares during the class period is “massive by any measure”); Stevelman v. Alias Research Inc., 174 F.3d 79, 85 (2d Cir.1999) (president and CEO of company sold 40 percent of his stock holdings in a company while making" }, { "docid": "13056866", "title": "", "text": "Profit Sharing Plan v. Philip Morris Cos., Inc., 75 F.3d 801, 814 (2d Cir.1996) (noting that the failure of some individual defendants to sell stock during class period undermined the plaintiffs’ allegations that any defendant intended to inflate stock for personal profit); Acito v. IMCERA Group, 47 F.3d 47, 54 (2d Cir.1995) (“The fact that the other defendants did not sell their shares during the relevant class period undermines plaintiffs’ claim that defendants delayed notifying the public so that they could sell their stock at a huge profit.”) (quotation and citation omitted). Accord In re Scholastic Corp. Securities Litigation, 252 F.3d 63, 75 (2d Cir.2001) (“the failure of other defendants to sell their stock undermined the plaintiffs’ theories that negative information was withheld to obtain a higher sell price.”); In re Glenayre Techs., Inc. Sec. Litig., No. 96 Civ. 8252, 1998 WL 915907, at *4 (S.D.N.Y. Dec. 30,1998) (concluding that inference of scienter from some defendants’ stock sales was undermined when CEO and other top officers did not sell stock during class period: “Certainly, one can assume that these highranking corporate officers ... would be part of any fraudulent scheme to benefit from insider information through preemptive stock sales. The absence of sales from these individuals, then, suggests that ... trading by [other] defendants does not give rise to a strong inference of scien-ter.”); In re Health Mgmt. Systems, Inc. Sec. Litig., No. 97 Civ.1965, 1998 WL 283286, at *6 n. 3 (S.D.N.Y. June 1, 1998) (single individual defendant’s sales of eighty-two percent of holdings not unusual when six other individual defendants’ sales comprised only between three and twenty-five percent of each’s individual holdings), Nonetheless, given the allegations regarding the “net proceeds” and volume of trading activity by Malone, the Court find that these allegations support a compelling inference of scienter as required based on a theory of motive and opportunity. In re SLM, 740 F.Supp.2d at 558 (sufficiently unusual when individual defendant “dumped nearly all of his shares during the Class Period.”). In the Court’s view, this inference is at least as compelling any competing, noneulpable inference. iv. As" }, { "docid": "13109677", "title": "", "text": "commit the alleged fraud, in part, because they were able to benefit from the resulting inflation of Cardinal’s stock price. Plaintiffs allege that during the Class Period, the Individual Defendants sold at least 774,156 shares of Cardinal stock, for proceeds of $49.7 million; they argue that the magnitude and timing of these sales of stock — independent of any sales in the context of an offering-by themselves raise a strong inference of scienter. Indeed, “[i]nsider trading at a suspicious time or in an unusual amount comprises one of the ‘fixed constellations of facts’ that courts have found probative of securities fraud.” See Helwig, 251 F.3d at 552; Firstenergy Corp., 316 F.Supp.2d at 599 (noting that insider selling at an opportunistic time supports an inference of fraudulent intent to mislead the market for personal gain, and insider sales made when a company’s stock price is near an all time high are probative of scienter). The “mere pleading of insider trading, [however,] without regard to either context or strength of the inferences to be drawn, is not enough.” See Greebel, 194 F.3d at 198; see also Maldonado v. Dominguez, 137 F.3d 1, 9-10 (1st Cir.1998). Courts should not “infer fraudulent intent from the mere fact that some officers sold stock ... Instead, [plaintiffs must allege that the trades were made at times and in quantities that were suspicious enough to support the necessary strong inference of scienter.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1424 (3d Cir.1997) (stock sales did not permit an infer ence of scienter because only three of the five defendants sold stock, plaintiffs provided information on the total stock holdings of only one defendant, who had traded only 0.5% of his holdings, and plaintiffs failed to plead facts indicating whether such trades were “normal and routine” for the defendants, and whether the trading profits were substantial in comparison to their overall compensation); see, e.g., Gree-bel, 194 F.3d at 197 (“Unusual trading or trading at suspicious times or in suspicious amounts by corporate insiders has long been recognized as probative of scienter.”); In re Advanta Corp." }, { "docid": "18484001", "title": "", "text": "information contradicting their public statements.”) (quotation marks omitted); Complete Mgmt., 2001 WL 314631, at *9 (allegations that defendants were aware that a large percentage of company’s receivables were ultimately uncollected and omitted this information in public statements adequately pled scien-ter). Scienter is also properly pled as to Keenan under the “motive and opportuni ty” prong. Among other things, plaintiffs allege that Keenan was motivated by his desire to make a large profit in unusual insider trading activity. See SAC ¶216. It is well established that unusual insider sales at the time of the alleged corporate misrepresentations may permit an inference of bad faith and scienter. See In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 74 (2d Cir. June 1, 2001); Acito, 47 F.3d at 54. The amount of profit realized from the sales, percentage of the insider’s total holdings that are sold during the class period, and the number of insiders making such sales are all probative factors in assessing whether insider trading activity was sufficiently unusual to support an inference of scienter. See Scholastic Corp., 252 F.3d 63, 74; Complete Mgmt., 2001 WL 314631, at *12. Here, Keenan was one' of the largest shareholders of Independent Energy, owning approximately 1.16 million Ordinary Shares, or approximately 3.1% of the Company’s Ordinary Shares. See SAC ¶ 27. In connection with the Secondary Offering, Keenan sold nearly 43% of his total holdings in Independent Energy at a price of $49.25 per share, netting $24.62 million in proceeds. See id. ¶¶ 27, 216. Furthermore, plaintiffs have alleged that the timing of Keenan’s sales was “highly unusual”. Id. ¶ 216. At the time of his sales, all of the analysts following the Company had BUY or STRONG BUY recommendations on the stock, with price targets in the $60 per share price range. See id. Finally, Keenan was not the only corporate insider who sold his shares of Independent Energy. In connection with the Secondary Offering, Sulley and Jones realized nearly $3 million each on sales of substantial portions of their holdings in the Company. Keenan’s sales are sufficiently widespread and substantial to qualify" }, { "docid": "11373345", "title": "", "text": "circumstantial evidence that the insider knew the best time to trade because he or she had inside information not shared by the public. This in turn is circumstantial evidence that he or she kept the information from the public in order to trade on the unfair advan tage.”); Stevelman v. Alias Research Inc., 174 F.3d 79, 85 (2d Cir.1999) (recognizing under the pre-PSLRA standard that unusual insider trading activity during the class period may permit an inference of bad faith and scienter). “Insider stock sales are not inherently suspicious; they become so only when the level of trading is ‘dramatically out of line with prior trading practices at times calculated to maximize the personal benefit from undisclosed inside information.’ ” In re Vantive Corp., 283 F.3d at 1092 (quoting Ronconi, 253 F.3d at 435). “[C]omplaints based on insider trading must allege more than that the defendant benefitted from trading because of a false statement or misleading omission; the insider trades have to be ‘unusual,’ either in the amount of profit made, the amount of stock traded, the portion of stockholdings sold, or the number of insiders involved,- before they will give rise to the required inference of scienter.” Florida State Bd. of Admin., 270 F.3d at 659. The investors allege that during the class period, the individual defendants sold the following shares, stated in relation to their total holdings: Paulson sold ten percent during a four-month period; Cheney sold thirty-five percent during a four-month period; Teo sold thirty-two percent during a four-day period; Wiltz sold twenty-three percent in one day; Sippl sold one hundred percent during a two-day period; and Snow sold one hundred percent during a period of a few days. While the sale of ten percent or even thirty-two percent of an individual’s stock interest during a class period fails to substantiate a strong inference of scienter in these circumstances, standing alone, the sale by Sippl and Snow of all of their shares is certainly disconcerting, as well are the facts that individual defendants sold a substantial portion of their shares within a relatively short period of time" }, { "docid": "20330285", "title": "", "text": "defibrillator market.” (Mem. in Opp’n at 36.) However, motives generally held by all corporate officers and directors are insufficient to establish a strong inference of scienter. Green Tree, 270 F.3d at 664. All corporate officers and directors want their corporations to be financially successful. Therefore, this motive does not support a strong inference of scienter. Plaintiffs also argue that the individual Defendants’ insider stock sales demonstrate a motive to commit securities fraud, and therefore create a strong inference of scienter. (Mem. in Opp’n at 48-49.) However, insider sales “are not inherently suspicious; they become so only when the level of trading is dramatically out of line with prior trading practices at times calculated to maximize the personal benefit from the undisclosed information.” Crowell GST Trust v. Possis Med., Inc., 519 F.3d 778, 783 (8th Cir.2008) (internal quotations and citations omitted). Thus, “insider trades have to be ‘unusual,’ either in the amount of profit made, the amount of stock traded, the portion of stockholdings sold, or the number of insiders involved, before they will give rise to the required inference of scienter.” Green Tree, 270 F.3d at 659. In this case, insider stock sales by the individual Defendants during the Class Period were not unusual or suspicious. “When evaluating stock sales, ... the proportion of shares actually sold by an insider to the volume of shares he could have sold is probative of whether the sale was unusual or suspicious.” In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir.1999). Defendants note that during the Class Period, Defendant Hawkins sold 1% of his stock holdings, Defendant Ellis sold .2% of his holdings, and Defendant Collins sold 14% of his holdings. (Def. Mem. at 33-34.) These percentages, standing alone, are insufficient to establish a strong inference of scienter. See Navarre, 299 F.3d at 747 (noting that sales of ten percent and thirty-two percent of an insider’s stock holdings, standing alone, is insufficient to establish a strong inference of scienter). Instead of relying on such percentages, Plaintiffs claim that Defendants’ stock sales were unusual and suspicious because of the sale" }, { "docid": "13056897", "title": "", "text": "Inc., Secs. Litig., 187 F.R.D. 133, 139 (S.D.N.Y.1999) (“In late August 1997, two months before the devastating October 27, 1997 press release and in the midst of a NYSID investigation that was eventually going to reveal Oxford’s accounting irregularities and internal control deficiencies, all of the Individual Defendants except Sullivan sold shares of Oxford common stock for aggregate profits of approximately $33,000,000. The timing of these trades is ‘suspicious’ enough, along with the other evidence, to support a strong inference of scienter.”). Thus, the Court finds that the Court finds that the allegations regarding the “net proceeds” and volume of trade activity — 12% of his Gentiva shares yielding $300,000 in “net profits” — by Potapchuck do not support an inference of scienter based on a theory of motive and opportunity. See Rothman v. Gregor, 220 F.3d 81, 94 (2d Cir.2000) (“Chaimowitz’s alleged $1.6 million profit is not unusual even if we look only to the absolute amount of profit, and certainly not if we consider the fact that Chaimowitz sold only 9.9 percent of his GT stock duringthe class period.”); Acito v. IMCERA Grp., Inc., 47 F.3d 47, 54 (2d Cir.1995) (trading not unusual where the defendant sold 30,-000 shares representing 11% of his holdings); In re Gildan Activewear, Inc. Sec. Litig., 636 F.Supp.2d 261, 271 & n. 5 (S.D.N.Y.2009) (trades found not to be unusual where sales amounted to only 22.5% and 4.9% of two defendants’ respective holdings, including options); In re KeySpan, 383 F.Supp.2d at 384-85 (a sales of less than twenty percent of holdings insufficient to establish scienter); In re Oxford Health Plans, Inc., 187 F.R.D. 133, 140 (S.D.N.Y.1999)(“Large volume trades may be suspicious but where a corporate insider sells only a small fraction of his or her shares in the corporation, the inference of scienter is weakened.”). Accordingly, the Court grants the Defendants’ motion for partial reconsideration to the extent that the remaining 10(b) claim against Potap-chuck based on a theory of motive and opportunity is dismissed. 2. As to Malone The Court does not reach the same result with respect to Malone. The Defendants" }, { "docid": "13056898", "title": "", "text": "his GT stock duringthe class period.”); Acito v. IMCERA Grp., Inc., 47 F.3d 47, 54 (2d Cir.1995) (trading not unusual where the defendant sold 30,-000 shares representing 11% of his holdings); In re Gildan Activewear, Inc. Sec. Litig., 636 F.Supp.2d 261, 271 & n. 5 (S.D.N.Y.2009) (trades found not to be unusual where sales amounted to only 22.5% and 4.9% of two defendants’ respective holdings, including options); In re KeySpan, 383 F.Supp.2d at 384-85 (a sales of less than twenty percent of holdings insufficient to establish scienter); In re Oxford Health Plans, Inc., 187 F.R.D. 133, 140 (S.D.N.Y.1999)(“Large volume trades may be suspicious but where a corporate insider sells only a small fraction of his or her shares in the corporation, the inference of scienter is weakened.”). Accordingly, the Court grants the Defendants’ motion for partial reconsideration to the extent that the remaining 10(b) claim against Potap-chuck based on a theory of motive and opportunity is dismissed. 2. As to Malone The Court does not reach the same result with respect to Malone. The Defendants contend that because three of the four Individual Defendants — Potapchuk, Strange, Slusser — did not engage in unusual or suspicious trading, there can be no inference of scienter on the part of Malone. To be sure, the fact that Potap-chuk, Strange, and Slusser are not sufficiently alleged to have engaged in unusual or suspicious trading “cuts against a finding of scienter as to Malone.” 971 F.Supp.2d at 327, 2013 WL 5291297, at *19; see also San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., Inc., 75 F.3d 801, 814 (2d Cir.1996) (noting that the failure of some individual defendants to sell stock during class period undermined the plaintiffs’ allegations that any defendant intended to inflate stock for personal profit); Acito, 47 F.3d at 54 (“The fact that the other defendants did not sell their shares during the relevant class period undermines plaintiffs’ claim that defendants delayed notifying the public so that they could sell their stock at a huge profit.”) (quotation and citation omitted). Accord In re Scholastic Corp. Securities Litigation," }, { "docid": "7614000", "title": "", "text": "trading during the purported Class Period alone do not support a strong inference of scienter. Tel-labs, 262 F.Supp.2d at 954. “Unusual” or “suspicious” stock sales by corporate insiders, however, may provide circumstantial evidence of scienter. Id.; Broudo, 339 F.3d at 940 (“[UJnusual stock or suspicious stock sales can serve as circumstantial inference of scienter.”). In order to rise to the level of “unusual” or “suspicious,” the insider trading must be “dramatically out of line with prior trading practices at times calculated to maximize the personal benefit from undisclosed inside information.” In re Silicon Graphics, Inc., 183 F.3d at 986 (internal quotation omitted). Plaintiffs fail to allege sufficient facts demonstrating that the sales by Defendants Birck and Kohler were unusual or suspicious. They do not allege the amount or percentage of overall shares sold by either of these Defendants. Indeed, at the time Defendant Birck sold 80,000 shares of common stock, he was the beneficial owner of over 37 million shares of Tellabs’ common stock. (R. 74-1, Def.’s Mot. to Dismiss SAC App., Ex. 9). Birck’s sales during the Class Period thus amount to less than 1% of his holdings. Plaintiffs do not allege the amount of profit Defendant Birck made on his sales. They also do not allege the history of trading on the part of these Individual Defendants. Furthermore, the SAC focuses on Defendant Notebaert’s allegedly fraudulent statements. Plaintiffs do not allege that CEO Notebaert sold stock during the Class Period. The absence of such allegations against him further weakens Plaintiffs’ argument that the insider sales support a strong inference of scienter on the part of Notebaert. See Druskin v. Answerthink, Inc., No. 02-23304, 299 F.Supp.2d 1307, 1336, 2004 WL 95402 at * 22 (S.D.Fla. Jan.5, 2004). Plaintiffs allegations of insider trading by other Tellabs’ insiders who are not named as Individual Defendants also fail to support- a strong inference of scienter. Plaintiffs assert that these sales “evidence senior management’s knowledge of serious undisclosed problems.” (R. 78-1, PL’s Opp. to Defs.’ Motion to Dismiss SAC, p. 32 n. 26.) Plaintiffs fail to make any allegations connecting Catherine Kozik, Thomas" }, { "docid": "13056858", "title": "", "text": "There is no question that “motive can be shown ... ‘when corporate insiders allegedly make a misrepresentation in order to sell their own shares at a profit.’ ” In re Citigroup Inc. Sec. Litig., 753 F.Supp.2d 206, 233 (S.D.NY.2010) (quoting ECA 553 F.3d at 198). “However, the mere fact that insider stock sales occurred does not suffice ..., [instead] [plaintiffs must establish that the sales were ‘unusual’ or ‘suspicious.’ ” In re Gildan Activewear, Inc. Sec. Litig., 636 F.Supp.2d 261, 270 (S.D.NY.2009) (internal quotation marks and citation omitted). “Whether trading was unusual or suspicious turns on factors including (1) the amount of net profits realized from the sales; (2) the percentages of holdings sold; (3) the change in volume of insider defendant’s sales; (4) the number of insider defendants selling; (5) whether sales occurred soon after statements defendants are alleged to know to be misleading; (6) whether sales occurred shortly before corrective disclosures or materialization of the alleged risk; and (7) whether sales were made pursuant to trading plans such as Rule 10b5-l plans.” Glaser v. The9, Ltd., 772 F.Supp.2d 573, 587 (S.D.N.Y.2011). A plaintiff alleging motive and opportunity in connection with stock sales must allege not only the defendants’ selling activity during the class period, but also the defendants’ net profits rather than their gross proceeds, in addition to the overall percentage changes in the defendants’ holdings. See In re eSpeed, 457 F.Supp.2d at 290 (“The Complaint also omits necessary information concerning (1) the percentage increase in each defendants’ holdings during the class period; and (2) the profit from defendants’ sales. In particular, plaintiffs plead that Amaitis and Noviello realized ‘gross proceeds’ of $2.8 million, but the Complaint does not disclose whether either made any profit from the sales.”). In the original consolidated class action complaint, the Plaintiff contended that the Defendants were motivated to engage in the wrongful conduct in order to sell inflated Gentiva securities. The Plaintiff stated that the Defendants Malone, Potapchuk, and Strange respectively sold 98%, 96%, and 28% of the Gentiva shares they acquired during the Class Period for proceeds of $8.1 million, $3.2" }, { "docid": "22406892", "title": "", "text": "the end of the GT Class Period: “Taking into account Defendant Chaimow-itz’s vested options, he held more shares at the end of the GT Class Period than at the beginning.” Id. The Appellants argue that the District Court erred by focusing on the percentage of stockholdings sold, not on the considerable dollar amounts received by Cayre and Chaimowitz for selling their shares. Insider sales have been found unusual based on a variety of factors, including the amount of profit from sales, see In re Oxford Health Plans, Inc. Securities Litigation, 187 F.R.D. 133, 140 (S.D.N.Y.1999) ($78 million profit from sale of 1.2 million shares during the class period is “massive by any measure”), and the portion of stockholdings sold, see Stevelman, 174 F.3d at 85 (president and CEO of company sold 40 percent of his stock holdings in company while making optimistic statements about company’s financial position), the change in volume of insider sales, see In re Quintel Entertainment Inc. Securities Litigation, 72 F.Supp.2d 283, 296 (S.D.N.Y.1999) (sales by corporate insiders represented 156 percent increase over total insider sales for fourteen months prior to start of class period), and the number of insiders selling, see San Leandro, 75 F.3d at 814 (company officer’s $2 million profit from company stock sales did not suffice to prove motive, because no other company executives sold their shares during the relevant period). In light of the $2 million profit in San Leandro, which in that case was not by itself enough to establish the sales as unusual, Chaimowitz’s alleged $1.6 million profit is not unusual even if we look only to the absolute amount of profit, and certainly not if we consider the fact that Chaimowitz sold only 9.9 percent of his GT stock during the class period, see Acito, 47 F.3d at 54 (insufficient facts to support inference of scienter where only one corpo rate insider sold 11 percent of his stock in the company). Although Cayre’s sales in December 1995 resulted in a $20 million return, a more significant amount, several circumstances surrounding his sales weaken the inference of fraudulent intent. First," }, { "docid": "19514343", "title": "", "text": "the AC's claim of scienter. a. Securities Transactions Plaintiffs first allege that the individual defendants-corporate insiders privy to information on ENTYCE's prospects for success-profited from suspiciously timed securities transactions. \"Unusual insider sales at the time of the alleged withholding of negative corporate news may permit an inference of bad faith and scienter.\" Scholastic Corp. , 252 F.3d at 74 (quotation marks omitted). \"Factors considered in determining whether insider trading activity is unusual include the amount of profit from the sales, the portion of stockholdings sold, the change in volume of insider sales, and the number of insiders selling.\" Id. at 74-75. It is undisputed that the individual defendants transacted in Aratana securities during the Class Period, pursuant to Rule 10b5-1 trading plans. See AC ¶¶ 154, 157. SEC filings indicate that during the Class Period, St. Peter acquired 237,400 shares of common stock and 345,000 options, and sold 300,000 shares, and that Tooman acquired 65,850 shares of common stock and 102,500 options, and sold 39,676 shares. See McDonough Decl. Exs. 41-16, 53-58. At the outset, the parties disagree as to the significance of the fact that the Aratana stock and stock options that the individual defendants acquired during the Class Period, in which the individual defendants had the present or future right to trade, were acquired at no cost. See id. Exs. 41, 45, 55, 58. Plaintiffs argue that shares obtained for free should be disregarded in determining whether the individual defendants' trading activity gives rise to an inference of scienter. See Opp. at 21 (citing Freudenberg v. E*Trade Fin. Corp. , 712 F.Supp.2d 171, 201 (S.D.N.Y. 2010) ); see also In re EVCI Colls. Holding Corp. Sec. Litig. , 469 F.Supp.2d 88, 100 (S.D.N.Y. 2006). Defendants, for their part, cite the \"weight of authority\" holding that zero-cost stock and option acquisitions should be taken into account in comparing the volume of an insider's sales to his overall shareholdings. See Mem. at 19-20 & n.8 (quoting Gildan Activewear, Inc. Sec. Litig. , 636 F.Supp.2d 261, 270 (S.D.N.Y. 2009) ); see also Acito , 47 F.3d at 54 (calculating total volume" }, { "docid": "5020943", "title": "", "text": "the defendants due to any other claimed inside sells.”); In re Keyspan Corp. Sec. Litig., 383 F.Supp.2d at 383-84 (fact that the chairman and CEO who made the alleged false statements did not sell, but actually purchased shares during the class period rebuts inference of scienter from other defendants’ stock 'sales); In re FVC.COM Sec. Litig., 136 F.Supp.2d 1031, 1039 (N.D.Cal.2000), aff'd, 32 Fed.Appx. 338 (9th Cir.2002) (“the fact that [the company]’s President and CEO ... did not sell any of his stock ... negates any slight inference of scienter”); In re Health Mgmt. Sys., Sec. Litig., No. 97 Civ. 1865(HB), 1998 U.S. Dist. LEXIS 8061, at *18, 1998 WL 283286, *6 (S.D.N.Y. June 1, 1998) (holding that the fact that two of the defendants, including the CFO, did not sell, but actually purchased shares undermines the plaintiffs claim that defendants delayed notifying the public so that they could sell their stock at a huge profit, even though the other defendants had sold, on average, in excess of twenty percent of their holdings during the class period); see also San Leandro Emergency Med. Group, 75 F.3d at 814 (“the sale of stock by one company executive does not give rise to a strong inference of the company’s fraudulent intent; the fact that other defendants did not sell their shares during the relevant class period sufficiently undermines plaintiffs’ claim regarding motive”); Acito, 47 F.3d at 54 (holding that lack of sales by several defendants “undermines plaintiffs’ claim that defendants delayed notifying the public ‘so that they could sell their stock at a huge profit’ ”). Plaintiffs emphasize the size of the stock sales and the Individual Defendants’ profit therefrom, alleging that the Individual Defendants sold 402,575 shares of XL stock for proceeds of more than $35 million during the Class Period. The gross proceeds, without more, do not aid the analysis: The significance of insider transactions in the scienter analysis is what, if anything, they suggest about the likely intent of the insiders. The gross proceeds, standing alone, tell us very little. Far more significant is the extent to which sales" }, { "docid": "10224256", "title": "", "text": "large number of today’s corporate executives are compensated in terms of stock and stock options. It follows then that these individuals will trade those securities in the normal course of events.”) (citations omitted). In addition, Mandell sold less than five percent of his Party City Stock during the Class Period. While Lauber allegedly sold 100 percent of his shares of Party City Stock during the Class Period, Man-dell and Lauber only sold approximately eight percent of their combined holdings. Moving Brief at 33 (citing Colyer Aff., Exhs. 1-4). Low aggregate sales and large retained aggregate holdings rebut an inference of motive, even where some defendants have sold significant percentages. See In re Advanta, 180 F.3d at 541 (“Far from supporting a ‘strong inference’ that defendants had a motive to capitalize on artificially inflated stock prices, [retained holdings] suggest [that] they had every incentive to keep Advanta profitable”); In re Silicon Graphics, 183 F.3d at 987-88 (where collective retention by all defendants aggregated 90%, no motive stated by individual’s sales of 43.6%); San Leandro, 75 F.3d at 813-14 (where insiders retained holdings, sales did not constitute scienter); In re Glenayre Tech., Inc. Sec. Litig., No. 96-8252, 1998 WL 915907, at *4 (S.D.N.Y.30 Dec.1998) (sales totaling only 5% of defendants’ cumulative holdings militates against an inference of scienter). The Plaintiffs, moreover, place emphasis on the allegation that Lauber sold all of his Party City Stock during the Class Period. Opposition Brief at 33-34. Nevertheless, the fact that Lauber may have sold all of his Party City Stock during the Class Period is insufficient, by itself, to support scienter. See e.g. Head, 1998 WL 917794, at *3-5 (no inference of scienter, even though one defendant sold 100% of holdings and two others sold 95% and 76%, respectively, where all defendants collectively sold only 5% of holdings). As discussed, Mandell and Lauber only sold approximately eight percent of their combined holdings. Moving Brief at 33 (citing Colyer Aff., Exhs. 1-4). (b) Incentive Compensation As mentioned, the Plaintiffs also allege that the Individual Defendants committed fraud in order to “protect and enhance their executive positions" } ]

[ { "docid": "21771739", "title": "", "text": "requirements for intervention, allowing it as a matter of right or permissively. This rule is modeled after Federal Rules of Civil Procedure (FRCP) Rule 24. See Jay v. Sec’y of HHS, 998 F.2d 979, 982 (Fed.Cir.1993); Imperial Van Lines Int’l, Inc. v. United States, 821 F.2d 634, 637 (Fed.Cir.1987). Intervention has historically been disfavored because the court has no jurisdiction over cases between private parties. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 67, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Indeed, the court is restricted to adjudicating “public rights.” Id. Moreover, given the court’s limited jurisdiction under the Tucker Act, the appropriateness of modeling the court’s third-party practice rules on the FRCP has been questioned. Anderson Columbia Envtl., Inc. v. United States, 42 Fed.Cl. 880, 881-82 (1999). The applicants maintain they are entitled to intervention of right because their interests in the land will be adversely affected if plaintiff succeeds in this case. In the alternative, the applicants assert they meet the requirements of permissive intervention. Plaintiff argues the applicants fail to satisfy the requirements of RCFC 24, so they cannot intervene in this case. Plaintiff also contends that, even if the applicants establish their right to intervene, they lack standing. I. Intervention of Right The applicants first seek to intervene as a matter of right pursuant to RCFC 24(a), which provides: Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. RCFC 24(a). If the applicants satisfy each element of RCFC 24(a)(1) or (a)(2), the court is without discretion and must permit them to intervene in the current suit, assuming that they can also prove standing. The threshold question in" } ]

[ { "docid": "16198638", "title": "", "text": "for assuming that the court, having become aware of this impediment to plaintiffs’ action, would have reached a different result if it had denied the government’s motion to intervene. In other .words, even if the Justice Department had appeared only in the capacity of amicus curiae, the outcome would not have changed. At all events it is clear to us that the court properly granted the United States leave to intervene as of right. Federal Rule of Civil Procedure 24(a) provides that an applicant for intervention must file a “timely application” and demonstrate that it has “an interest relating to the property or transaction which is the subject matter of the action” and that “the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” See also Smoke v. Norton, 252 F.3d 468, 470 (D.C.Cir.2001). The district court correctly analyzed each of these factors. Timeliness is measured from when the prospective intervenor “knew or should have known that any of its rights would be directly affected by the litigation.” Nat’l Wildlife Fed’n v. Burford, 878 F.2d 422, 483-34 (D.C.Cir.1989), rev’d on other grounds sub nom. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Here, the government moved to intervene less than thirty days after the State Department received notice of the potential conflict with the executive agreement. As to the government’s interest, plaintiffs suppose it is in providing Iran with a defense. That is incorrect. The government’s interest is in upholding the Algiers Accords, an interest that would be impaired if plaintiffs obtained a judgment in 'violation of the Accords. We have already decided that the interest of the United States in meeting “its obligations under the executive agreement with Iran” entitled it to intervene as a defendant. See Persinger, 729 F.2d at 837. And because Iran failed to appear before the district court, the interest of the United States was not represented by the existing parties. Although" }, { "docid": "11449315", "title": "", "text": "cert. denied, — U.S. -, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). See also 7A C. Wright & A. Miller, Federal Practice and Procedure § 1902 (1972). B. The Validity of the District Court’s Decision Rule 24 is broadly construed in favor of applicants for intervention. Washington State Building & Construction Trades Council v. Spellman, 684 F.2d 627, 630 (9th Cir.1982); 7A C. Wright & A. Miller, supra, § 1904. We have adopted a four-part test to determine whether applications for intervention as of right pursuant to Rule 24(a)(2) should be granted. An order granting intervention as of right is appropriate if (1) the applicant’s motion is timely; (2) the applicant has asserted an interest relating to the property or transaction which is the subject of the action; (3) the applicant is so situated that without intervention the disposition may, as a practical matter, impair or impede its ability to protect that interest; and (4) the applicant’s interest is not adequately represented by the existing parties. Sagebrush Rebellion, Inc. v. Watt, 713 F.2d at 527; County of Fresno v. Andrus, 622 F.2d at 438. In applying this test we are guided primarily by practical considerations. See Fed.R.Civ.P. 24(a)(2) advisory committee note (“if an [applicant] would be substantially affected in a practical sense by the determination made in an action, [the applicant] should, as a general rule, be entitled to intervene____”). The parties dispute neither the timeliness of CNA’s application nor its interest in the property at issue. Accordingly, we will address only the remaining two parts of the test. 1. Extent to which denial of appellant’s motion to intervene as of right impairs its ability to protect its interest In support of its showing that disposition of this action may have a practical adverse impact on its interests, CNA points to the effect that any decision in this case would have on subsequent claims it might bring against the original parties. CNA correctly points out that “[u]nder the doctrine of stare decisis, appellate rulings of law become controlling precedent and, consequently, affect the rights of future litigants.” McConney, 728 F.2d" }, { "docid": "22922384", "title": "", "text": "in determining timeliness of the intervention is the existence of unusual circumstances militating either for or against a determination that the application is timely. We are aware of no such specific circumstances pertinent to this case. In summary, based upon the brief time that had elapsed between the Forest Service’s June 24, 1993, letter and the motion for intervention, the remoteness of prejudice to the existing parties resulting from this delay, and the likelihood of prejudice to the movants if intervention were denied, we conclude that the motion to intervene was timely. B. The second requirement for intervention as a matter of right under rule 24(a) is that the applicant have an “interest” in the subject matter of the action. This interest must be “direct, substantial, [and] legally protecta-ble.” Piambino v. Bailey, 610 F.2d 1306, 1321 (5th Cir.) (citations omitted), cert. denied, 449 U.S. 1011, 101 S.Ct. 568, 66 L.Ed.2d 469 (1980). Plaintiffs claim that the movants’ interest is too speculative and generalized to satisfy rule 24. We disagree. Movants represent the forest products industry, including the major purchasers and processors of Texas national forest timber. These member companies have legally protectable property interests in existing timber contracts that are threatened by the potential bar on even-aged management. Since “the ‘interest’ test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process,” Ceres Gulf, 957 F.2d at 1203 n. 10 (citation omitted), we conclude that movants had an interest sufficient to satisfy rule 24. C. The third requirement of rule 24(a) is that the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect his interest. Plaintiffs argue that adverse stare decisis effects will not supply the requisite disadvantage to satisfy this test. As we have stated in Ceres Gulf, id. at 1204, however, an intervenor’s interest “is impaired by the stare decisis effect of the district court’s judgment.” The issue of whether the NFMA bars even-aged logging affects the movants and, because" }, { "docid": "22922385", "title": "", "text": "including the major purchasers and processors of Texas national forest timber. These member companies have legally protectable property interests in existing timber contracts that are threatened by the potential bar on even-aged management. Since “the ‘interest’ test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process,” Ceres Gulf, 957 F.2d at 1203 n. 10 (citation omitted), we conclude that movants had an interest sufficient to satisfy rule 24. C. The third requirement of rule 24(a) is that the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect his interest. Plaintiffs argue that adverse stare decisis effects will not supply the requisite disadvantage to satisfy this test. As we have stated in Ceres Gulf, id. at 1204, however, an intervenor’s interest “is impaired by the stare decisis effect of the district court’s judgment.” The issue of whether the NFMA bars even-aged logging affects the movants and, because of the precedential effect of the district court’s decision, an adverse resolution of the action would impair their ability to protect their interest. D. The final requirement for intervention as a matter of right is that the applicant’s interest must be inadequately represented by the existing parties to the suit. The applicant has the burden of demonstrating inadequate representation, but this burden is “minimal.” Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636, 30 L.Ed.2d 686 (1972). The applicant need only show that representation “may be” inadequate. Id. Plaintiffs contend that the government adequately represents the movants’ interest because the interests are essentially identical. We cannot agree with this position. The movants have demonstrated, through the June 24, 1993, letter applying the district court’s preliminary injunction to all future timber sales, that the government’s representation of their interest is inadequate. The government must represent the broad public interest, not just the economic concerns of the timber industry. Given the minimal burden on the movants to satisfy this requirement, we" }, { "docid": "10338559", "title": "", "text": "their subcontractors, consultants, or representatives ... in order to implement the remedy at the Meta-mora Landfill” which plaintiff alleges caused the taking of plaintiffs property. Id. HIT 51, 56. The members of the Metamora Group assert that they are entitled to intervention of right and, in the alternative, that they meet the test for allowing permissive intervention. Metamora Mem. at 4. Plaintiff opposes the Metamora Group’s motion to intervene. See Plaintiff John R. Sand & Gravel Company’s Response to the Metamora Group’s Motion to Intervene (Pl.’s Resp.) at 7, 35 (“The Metamora Group fails to demonstrate that it meets any of the criteria for intervention of right or any of the criteria for permissive intervention.”). II. Discussion A. Legal Framework Intervention is governed by Rule 24 of the Rules of the United States Court of Federal Claims (RCFC). Intervention may be allowed either as a matter of right under Rule 24(a) or permissively under Rule 24(b). Although “the requirements for intervention are to be construed in favor of intervention,” Am. Mar. Transp., Inc. v. United States, 870 F.2d 1559, 1561 (Fed.Cir.1989), courts routinely deny motions to intervene, see, e.g., id. at 1563 (affirming denial of motion to intervene because applicant “had not claimed an interest recognized under Rule 24(a)”). The rule governing intervention of right states: Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. RCFC 24(a). While it is true that “[i]f the movant satisfies the elements of RCFC 24(a), the court is without discretion, and the movant ‘shall be permitted to intervene,’ ” Fifth Third Bank v. United States, 52 Fed.Cl. 202, 203 (2002) (quoting RCFC 24(a)), courts are nevertheless “entitled to the full range of reasonable discretion in determining whether the[ ] requirements [for intervention of right]" }, { "docid": "178365", "title": "", "text": "see also Status Conf. Tr. 9:19 to 10:4 (Mar. 29. 2016) (explaining that Old Anchor is defunct), The final disposition of the present action will resolve, at least in part, the question of the extent to which the United States controlled and operated Old Anchor prior to and at the time of the sale of Old Anchor’s assets to New Anchor and Tank. Accordingly, this disposition could impair or adversely affect the Fund’s ability to pursue its ERISA claims against the United States in the future, absent its ability to intervene here. See 6 Moore’s Federal Practice § 24.03[3][a] at 24-41 (“A movant’s interest is plainly impaired if disposition of the action in which intervention is sought will prevent any future attempts by the movant to pursue its interest.” (citing Washington Elec. Coop. v. Massachusetts Mun. Wholesale Elec. Co., 922 F.2d 92, 98 (2d Cir.1990))). Finally, the Fund has plausibly alleged that its interests in the present action are not adequately represented by New Anchor and Tank because the Fund’s right to recovery under ERISA and as a third-party beneficiary to the Master Contract differs from New Anchor’s and Tank’s breach-of-contract theory of recovery. Mot. to Intervene at 3-4. Accordingly, the court finds that the New York Oil Heating Fund has established its right to intervene in the present action under RCFC 24(a). CONCLUSION For the reasons stated, the government’s motion to dismiss under RCFC 12(b)(1) and 12(b)(6) is DENIED. The New York Oil Heating Fund’s motion to intervene is GRANTED. The Fund’s complaint as intervening plaintiff, proffered with is motion to intervene, is deemed to be filed as of the date of this decision. The government is requested to file its answers to plaintiffs’ and plaintiff-interve-nor’s complaints by August 31, 2016. It is so ORDERED. . Three separate actions are pending \"in this court based on these suits in the district court. The first case, Case No. 15-1448C, stems from the suit by the New York Oil Heating Fund against New Anchor and Tank. In the district court, after New Anchor and Tank had filed a third-party complaint against" }, { "docid": "178361", "title": "", "text": "been intended to transfer the assets previously forfeited to the government to the plaintiffs, which would continue to carry out the oil delivery business in a way that was virtually identical to that of Old Anchor for purposes of a “sting” operation, while at the same time allowing the government to receive funds to satisfy at least part of the civil forfeiture judgment against Mr. Baldan and Mr. Hiller. E.g., Pis.’ Opp’n Ex. 12 (stipulating that the proceeds of the sale would be transferred to the Department of Treasury); Fund Compl. ¶¶ 56-62 (alleging that all the officers and employees of Old Anchor, including Mr. Baldari, became officers and employees of New Anchor and Tank following the purchase). In that sense, the purchase agreement is more akin to the type of “collaborative effort” distinguished by the Federal Circuit in Instituí Pasteur, 814 F.2d at 627, than to a competitive procurement or sale intended to be covered by the CDA. Accordingly, the court finds that the provisions of the CDA do not apply to the Purchase Agreement alleged to be a contract between plaintiffs and the United States. For the reasons discussed, .the government’s mo-' tion to dismiss plaintiffs’ complaint is DENIED. MOTION TO INTERVENE The standards and procedures for intervention in a case before this court are governed by RCFC 24. A party may seek “intervention of right” under the provisions of RCFC 24(a), or “permissive intervention” under RCFC 24(b). When considering a motion to intervene as of right, “the court considers (1) the timeliness of the motion; (2) whether the applicant claims an interest relating to the property or transaction that is the subject of the action; (3) whether the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest; and (4) whether the applicant’s interest is adequately represented by existing parties.” Wolfchild v. United States, 72 Fed.Cl. 511, 520 n. 11 (2006) (citing American Maritime Transp. Inc. v. United States, 870 F.2d 1559, 1560 (Fed.Cir.1989); Honeywell Int'l Inc. v. United States, 71 Fed.Cl." }, { "docid": "11449316", "title": "", "text": "County of Fresno v. Andrus, 622 F.2d at 438. In applying this test we are guided primarily by practical considerations. See Fed.R.Civ.P. 24(a)(2) advisory committee note (“if an [applicant] would be substantially affected in a practical sense by the determination made in an action, [the applicant] should, as a general rule, be entitled to intervene____”). The parties dispute neither the timeliness of CNA’s application nor its interest in the property at issue. Accordingly, we will address only the remaining two parts of the test. 1. Extent to which denial of appellant’s motion to intervene as of right impairs its ability to protect its interest In support of its showing that disposition of this action may have a practical adverse impact on its interests, CNA points to the effect that any decision in this case would have on subsequent claims it might bring against the original parties. CNA correctly points out that “[u]nder the doctrine of stare decisis, appellate rulings of law become controlling precedent and, consequently, affect the rights of future litigants.” McConney, 728 F.2d at 1201. In light of this potential stare decisis effect, CNA contends that its absence from this litigation could, as a practical matter, result in its being precluded from litigating several of its claims against the governmental parties. We agree. The prospect of stare decisis may, under certain circumstances, supply the requisite practical impairment warranting intervention as of right. Smith v. Pangilinan, 651 F.2d 1320,1325 (9th Cir.1981); see also Atlantis Development Corp. v. United States, 379 F.2d 818, 826-29 (5th Cir.1967); 7A C. Wright & A. Miller, supra, § 1908 at 515-17. Here, because of the issues of fact and law that are common to (1) CNA’s complaint in intervention, (2) the governments’ original complaint and (3) the waste-generators’ counterclaims, resolution of the liability questions would, as a practical matter, bear significantly on the resolution of CNA’s claims against any of the original parties in a subsequent related action. Cf. Atlantis Development Corp. v. United States, 379 F.2d at 826-29. Our analysis is also influenced by the divergent remedial schemes sought by the original parties" }, { "docid": "21771740", "title": "", "text": "fail to satisfy the requirements of RCFC 24, so they cannot intervene in this case. Plaintiff also contends that, even if the applicants establish their right to intervene, they lack standing. I. Intervention of Right The applicants first seek to intervene as a matter of right pursuant to RCFC 24(a), which provides: Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. RCFC 24(a). If the applicants satisfy each element of RCFC 24(a)(1) or (a)(2), the court is without discretion and must permit them to intervene in the current suit, assuming that they can also prove standing. The threshold question in this analysis is whether the applicants’ request to intervene is timely. RCFC 24(a) (“upon timely application ... ”). In evaluating timeliness, the court must consider three factors: (1) the length of delay in making the application for intervention; (2) the prejudice to the existing parties from intervention versus the prejudice to the would-be intervenor if intervention is denied; and (3) any other unusual circumstances militating in favor or against intervention. Standard Space Platforms Corp. v. United States, 35 Fed.Cl. 463, 466 (1996) (citing Belton Indus. Inc. v. United States, 6 F.3d 756, 762 (Fed.Cir.1993)). The applicants’ motion comes less than four months after plaintiff filed the complaint, and approximately three weeks subsequent to when the government offered its answer. See Hage v. United States, 35 Fed.Cl. 737, 740 (1996) (finding that the applicants filed their motion in a timely fashion because it was submitted three months after the plaintiff filed its complaint). The court concludes this is a reasonable period of time. Also, any prejudice to the existing parties would be minimal since there are" }, { "docid": "6879515", "title": "", "text": "that class certification is proper where the prosecution of separate actions by individual members of the class would create a risk of adjudications “which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.” Fed.R.Civ.P. 23(b)(1)(B). As plaintiffs are seeking relief on behalf of the Fund as a whole, the Court finds that prosecution of separate actions by individual Members would, indeed, create a risk of adjudications which would be dispositive of the interests of the other members not parties to such adjudications. “Because a plan participant or beneficiary may bring an action to ■ remedy breaches of fiduciary duty only in a representative capacity, such an action affects all participants arid beneficiaries, albeit indirectly.” Specialty Cabinets & Fixtures, Inc. v. American Equitable Life Ins. Co., 140 F.R.D. 474, 478 (S.D.Ga.1991). Accordingly, the Court finds that class certification is proper under Rule 23(b)(1)(B). II. Motions to Dismiss A. Standards of Law The Trustee Defendants move, pursuant to Rule 12(b)(6), for an order dismissing the Second, Third and Seventh Claims for Relief on the grounds that they fail to state a claim upon which relief can be granted. It is well settled that, when passing on a motion to dismiss, the Court must accept the allegations of the complaint as true and construe them in favor of the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). A complaint should not be dismissed for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir.1985) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). B. The Trustee Defendants 1. Failure to State a Claim ERISA is a comprehensive statute enacted to protect the interests of participants in employee benefit-plans and their beneficiaries “by establishing standards of conduct, responsibility, and" }, { "docid": "22429631", "title": "", "text": "support intervention”). The nature of the detainees’ interest and the effect that the disposition of the lawsuit will have on their ability to protect that interest are closely related issues. “The second cannot be answered without reference to the first.” Hobson v. Hansen, 44 F.R.D. 18, 30 (D.D.C.1968). We think the detainees are so situated that the disposition of the lawsuit will, as a practical matter, impair their ability to protect their interests. As we have already discussed, the detainees are confined in the institution whose operation is being challenged. There is therefore a conjunction of a claim to and an interest in the very transaction which is the subject of the main action, and the stare decisis effect of a decision suggests the practical disadvantage requisite for intervention. Where a party seeking to intervene in an action claims an interest in the very property and very transaction that is the subject of the main action, the potential stare decisis efj feet may supply that practical disadvantage which warrants intervention as of right. Atlantis Development Corp. v. United States, 379 F.2d 818, 829 (5th Cir.1967). The detainees’ ability to litigate the government’s operation of Krome in a separate lawsuit might be an exercise in futility if the instant lawsuit was decided in favor of the government. Because the detainees’ interest is similar to, but not identical with, that of Dade County, we must determine whether the detainees’ interest is adequately represented. The Supreme Court has held that the inadequate representation requirement “is satisfied if the [proposed intervenor] shows that representation of his interest ‘may be’ inadequate” and that “the burden of making that showing should be treated as minimal.” Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636 n. 10, 30 L.Ed.2d 686 (1972). Thus, the detainees “should be allowed to intervene unless it is clear that [Dade County] will provide adequate representation.” 7C C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1909, at 319 (2d ed. 1986). The fact that the interests are similar does not mean" }, { "docid": "178362", "title": "", "text": "Agreement alleged to be a contract between plaintiffs and the United States. For the reasons discussed, .the government’s mo-' tion to dismiss plaintiffs’ complaint is DENIED. MOTION TO INTERVENE The standards and procedures for intervention in a case before this court are governed by RCFC 24. A party may seek “intervention of right” under the provisions of RCFC 24(a), or “permissive intervention” under RCFC 24(b). When considering a motion to intervene as of right, “the court considers (1) the timeliness of the motion; (2) whether the applicant claims an interest relating to the property or transaction that is the subject of the action; (3) whether the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest; and (4) whether the applicant’s interest is adequately represented by existing parties.” Wolfchild v. United States, 72 Fed.Cl. 511, 520 n. 11 (2006) (citing American Maritime Transp. Inc. v. United States, 870 F.2d 1559, 1560 (Fed.Cir.1989); Honeywell Int'l Inc. v. United States, 71 Fed.Cl. 759, 761-62 (2006); Klamath Irrigation Dist. v. United States, 64 Fed.Cl. 328, 330-33 (2005)). Contrastingly, the court may allow a party to intervene when it “has a claim or defense that shares with the main action a common question of law or fact.” RCFC 24(b). “[T]he requirements for intervention are to be construed in favor of intervention.” American Maritime Transp., 870 F.2d at 1561. Notwithstanding this general rule, however, “[intervention is proper only to protect those interests which are ‘of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.’ ” Id. (quoting United States v. American Telephone & Telegraph Co., 642 F.2d 1285, 1292 (D.C.Cir.1980)) (emphasis in original). The Fund’s motion is timely because it was filed on March 3, 2016, shortly after the government filed its motion to dismiss in lieu of an answer to the complaint on February 22, 2016. Mot. to Intervene at 3. The Fund has also claimed a “legally protected interest” related to the subject" }, { "docid": "10338586", "title": "", "text": "operate as stare decisis, which is “[t]he doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation,” Black’s Law Dictionary 1414 (7th ed.1999) (emphasis added). Thus, the disposition of this action does not impair or impede intervenor-applicants’ ability to protect their interest. See RCFC 24(a) (requiring, in order to grant intervention of right, that potential intervenors be “so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect [their] interest”). 3. Inadequate Representation The final element that applicants must demonstrate in order to be granted intervention of right is that “their interest is inadequately represented by the existing parties.” Freeman, 50 Fed.Cl. at 308-09. When applicants seek to intervene as a party on the side of the United States, the government is presumed adequately to represent the applicants’ interest. See id. at 310 (stating that the government is presumed to represent an applicant’s interest); Anderson Columbia Envtl., 42 Fed.Cl. at 883 (“[W]hen the government is a party, it is presumed to represent the would-be intervenor’s interest.”). “The applicants may rebut the presumption of adequate representation through a showing of collusion, adversity of interest, or nonfeasance.” Freeman, 50 Fed.Cl. at 310; see also Anderson Columbia Envtl., 42 Fed.Cl. at 883 (“To rebut this presumption, the would-be intervenor must show collusion, adversity of interest, or nonfeasance.”). Intervenor-applicants argue that an adversity of interest exists between defendant and intervenor-applicants because “the Government’s interest in minimizing damages is not as great as the Metamora Group’s because the Government intends to seek reimbursement of any damages from the Metamora Group.” Metamora Reply at 12. Intervenor-applieants have not asserted that there is collusion between plaintiff and defendant or nonfeasance by defendant. Plaintiff states that intervenor-applicants “fail[ ] to rebut” the presumption of adequate representation. Pl.’s Resp. at 24. The court notes, first, that the difference in the interests of defendant and intervenor-applicants is, at most, one of degree and not of kind. The court also views with skepticism the suggestion of intervenor-applicants that," }, { "docid": "10338585", "title": "", "text": "judgment in this court on “a district judge in Michigan in a suit to enforce this consent decree”); Pl.’s Resp. at 23 (“Nothing in a judgment from this Court prevents the Meta-mora Group from disputing in the district court any fact or evidence in this action.”). In a dispute between defendant and interve-nor-applicants before a Michigan district court, the district court would not be bound by stare decisis to follow this court’s decision. Although intervenor-applicants argue that “as a practical matter,” see Tr. at 59 (emphasizing these words in RCFC 24(a)), a Michigan district court will defer to this court’s ruling, see Tr. at 22 (“[A]t a minimum ... there will be deference given by the Court in Michigan to [this court’s] rulings about such issues as whether the compensation is just, if compensation were awarded.”), the fact is that a Michigan district court will not be bound by this court’s decision. While it may be true that this court’s decision will operate as precedent to which the district court may look, it does not operate as stare decisis, which is “[t]he doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation,” Black’s Law Dictionary 1414 (7th ed.1999) (emphasis added). Thus, the disposition of this action does not impair or impede intervenor-applicants’ ability to protect their interest. See RCFC 24(a) (requiring, in order to grant intervention of right, that potential intervenors be “so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect [their] interest”). 3. Inadequate Representation The final element that applicants must demonstrate in order to be granted intervention of right is that “their interest is inadequately represented by the existing parties.” Freeman, 50 Fed.Cl. at 308-09. When applicants seek to intervene as a party on the side of the United States, the government is presumed adequately to represent the applicants’ interest. See id. at 310 (stating that the government is presumed to represent an applicant’s interest); Anderson Columbia Envtl., 42 Fed.Cl. at 883 (“[W]hen" }, { "docid": "10338560", "title": "", "text": "States, 870 F.2d 1559, 1561 (Fed.Cir.1989), courts routinely deny motions to intervene, see, e.g., id. at 1563 (affirming denial of motion to intervene because applicant “had not claimed an interest recognized under Rule 24(a)”). The rule governing intervention of right states: Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. RCFC 24(a). While it is true that “[i]f the movant satisfies the elements of RCFC 24(a), the court is without discretion, and the movant ‘shall be permitted to intervene,’ ” Fifth Third Bank v. United States, 52 Fed.Cl. 202, 203 (2002) (quoting RCFC 24(a)), courts are nevertheless “entitled to the full range of reasonable discretion in determining whether the[ ] requirements [for intervention of right] have been met,” Rios v. Enter., Ass’n Steamfitters Local Union No. 638, 520 F.2d 352, 355 (2d Cir.1975); see also 6 James Wm. Moore, Moore’s Federal Practice § 24.03[5][a], at 24-51 (3d ed. 2002) (“Despite the label ‘intervention of right,’ courts exercise some discretion in weighing a motion to intervene under Rule 24(a)(2).”). The rule governing permissive intervention states: Upon timely application anyone may be permitted to intervene in an action ... when an applicant’s claim or defense and the main action have a question of law or fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. RCFC 24(b). The rule specifically vests the court with discretion in deciding whether to allow permissive intervention. “Trial courts possess ‘broad discretion in resolving applications for permissive intervention.’” Moore, supra, § 24.10[1], at 24-55 (quoting Rosenshein v. Kleban, 918 F.Supp. 98, 106 (S.D.N.Y.1996)). B. Timeliness Under both Rule 24(a) and Rule 24(b), the application to intervene must be “timely.”" }, { "docid": "22850402", "title": "", "text": "[its] ability to protect [its] interest.” That is, to be sure, a determination by us that in the new language of 24(a) (2) stare decisis may now — unlike the former days under 24 (a) (2) — supply that practical disadvantage which warrants intervention of right. It bears repeating, however, that this holding does not presage one requiring intervention of right in every conceivable circumstance where under the operation of the Circuit’s stare decisis practice? the formidable nature of an en banc rehearing or the successful grant of a writ of certiorari, an earlier decision might afford a substantial obstacle. We are dealing here with a conjunction of a claim to and interest in the very property and the very transaction which is the subject of the main action. When those coincide, the Court before whom the potential parties in the second suit must come must itself take the intellectually straight forward, realistic view that the first decision will in all likelihood be the second and the third and the last one. Even the possibility that the decision might be overturned by en banc ruling or reversal on certiorari does not overcome its practical effect, not just as an obstacle, but as the forerunner of the actual outcome. In the face of that, it is “as a practical matter” a certainty that an absent party seeking a right to enter the fray to advance his interest against all or some of the parties as to matters upon which he is for all practical purposes shortly to be foreclosed knows the disposition in his absence will “impair or impede his ability to protect that interest, * * F.R.Civ.P. 24(a) (2). Reversed. . Atlantis Development Corporation, Ltd., a Bahamian corporation, will be referred to interchangeably as either Atlantis or Intervenor. . The “facts” are as yet unknown since no trial of either the main or the intervention case has been had. They are revealed in this record solely in the complaint, the answer, the proposed intervention, and supporting affidavit which in turn incorporated a detailed 32-page memorandum previously filed by the inter-venor’s" }, { "docid": "16533669", "title": "", "text": "relating to the sending of notice, except where such costs are not substantial. See Oppenheimer Fund, 437 U.S. at 359, 98 S.Ct. 2380 (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)). . The court also noted the communities were arguably eligible to intervene under RCFC 24(a)(2), but none of them had moved to do so. Wolfchild, 62 Fed.Cl. at 536 n. 11. . The Lower Sioux Indian Community notes that it initially filed an amicus brief prepared by counsel who also represented the Prairie Island Indian Community, but that it no longer is represented by that counsel. See Motion To Proceed Pro Se. . RCFC 24 states, in pertinent part: (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. . In pertinent part, RCFC 14(a) provides: (a) Summoned Parties. (1) On motion of the United States, the court may summon any third person against whom the United States may be asserting a claim or contingent claim for the recovery of money paid by the United States in respect of the transaction or matter that constitutes the subject matter of the suit to appear as a party and defend the third parly’s interest, if any, in such suit. . Section 114 of Title 41 states, in pertinent part: (b) Procedure The United States Court of Federal Claims, on motion of either of the parties, or on its own motion, may summon any and all persons with legal capacity to be sued to appear as a party or parties in any suit or proceeding of any nature whatsoever pending in said court to assert and defend their interests, if any, in such suits or proceedings, within such period of" }, { "docid": "21771745", "title": "", "text": "of just compensation adversely affects them in any way. The applicants, therefore, cannot satisfy the first element of RCFC 24(a)(2). This finding precludes them from intervention of right. Nevertheless, assuming they could meet this requirement they still fail to establish the remaining two elements. The second element requires them to demonstrate that they are “so situated that the disposition of the action may, as a practical matter impair or impede [their] ability to protect that interest.” RCFC 24(a)(2). When analyzing this element, the court has considered the impact of stare decisis and the ability of the applicants to utilize the political or administrative process to redress their claim. Hage, 35 Fed.Cl. at 741. This case is limited to a determination of just compensation. Such an award would not set precedent that impedes or impairs the applicants’ ability to protect their interests. Moreover, the applicants could seek recourse through the political process. They concede in their motion that, “Currently, the federal government is precluded from processing certain mineral patent applications under a congressional moratorium contained in the yearly Interior Department appropriations bill signed by the previous Administration.” Regardless of whether the moratorium is renewed by the current administration, the political process remains a viable option for the applicants. United States v. Shum-way, 199 F.3d 1093, 1101 (9th Cir.1999) (citing Swanson v. Babbitt, 3 F.3d 1348 (9th Cir.1993)). So long as there is an opportunity to influence public policy, the chance for recourse still exists. As for the third element, the applicants are unable to show that their interests are inadequately represented by the existing parties. RCFC 24(a)(2). Some courts have held that the burden of demonstrating inadequate representation is minimal, Sagebrush Rebellion, Inc. v. Watt, 718 F.2d 525, 528 (9th Cir.1983) (citing Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972)), however, “when the government is a party, it is presumed to represent the would-be intervenor’s interest.” Anderson, 42 Fed.Cl. at 883 (citing Standard Heating & Air Conditioning Co. v. City of Minneapolis, 137 F.3d 567, 572 (8th Cir.1998)). The applicants may" }, { "docid": "8657105", "title": "", "text": "Weight § 1908, at 302. The stare decisis effect of a judgment may create practical harm sufficient to meet the requirements of Rule 24(a). Id. In deciding whether TCU has shown that it will suffer practical harm from disposition of the main suit, the relevant question is whether resolution of the main suit favorably to plaintiff will render the interest claimed by TCU worthless for all practical purposes. See Atlantis Dev. Corp. v. United States, 379 F.2d 818, 828 (5th Cir.1967) (holding that development company’s claim to ownership of islands would become worthless if United States prevailed on its claim to exclusive ownership of islands). If this Court decides that GPSC regulation is preempted by the ICC Termination Act, assuming that holding is “approved by the Supreme Court after an appeal to it and thereafter it is either affirmed or not taken for review on cert.,” TCU’s defense of GPSC’s authority to regulate will be worthless. Id. Thus the failure to allow TCU an opportunity at this point to advance its own legal theories and arguments in support of GPSC’s continuing authority to regulate railroads in Georgia will as a practical matter impair its ability to protect the interest of its members in GPSC’s continued regulation. C. Inadequate Representation The burden on an applicant for intervention to show inadequate representation by existing parties is minimal. Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636 n. 10, 30 L.Ed.2d 686 (1972). If the applicant’s interest is similar to but not identical with that of one of the parties, he ordinarily should be allowed to intervene unless it is clear that the party will provide adequate representation for the absentee litigant. Wright § 1909, at 319. In this case the litigant which plaintiff asserts adequately represents TCU’s interest is a government agency. The Eleventh Circuit has found that the interests of a government entity “are likely to diverge from those of a private intervenor,” as to such issues, for example, as the amount of money “which will be expended in litigation in order to defend the" }, { "docid": "21665172", "title": "", "text": "bore the risk of loss for the IRS’s alleged negligence on the contract of sale and that subject matter jurisdiction is lacking over plaintiffs claims for tortious breach of contract and restitution. DISCUSSION 1. Standards for motion to dismiss and motion for summary judgment When a federal court reviews the sufficiency of a complaint, whether on the ground of lack of subject matter jurisdiction pursuant to RCFC 12(b)(1) or for failure to state a claim upon which relief can be granted pursuant to RCFC 12(b)(4), “its task is necessarily a limited one.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Id. To this end, the court must accept as true the facts alleged in the complaint, see Reynolds v. Army & Air Force Exchange Service, 846 F.2d 746, 747 (Fed.Cir.1988), and must construe such facts in the light most favorable to the pleader, see Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). When deciding a motion to dismiss, the court may consider all relevant evidence in order to resolve any disputes as to the truth of the jurisdictional facts in the complaint. The court is required to decide any disputed facts which are relevant to the issue of jurisdiction. Reynolds, 846 F.2d at 747. “Ambiguities with regard to jurisdiction should be ‘resolved against the assumption of jurisdiction.’” Novell v. United States, 46 Fed.Cl. 601, 606 (2000) (quoting Mars, Inc. v. Kabushiki-Kaisha Nippon Conlux, 24 F.3d 1368, 1373 (Fed.Cir.1994)). Summary judgment is appropriate only when the moving party is entitled to judgment as a matter of law and no disputes exist over material facts that may significantly affect the outcome of the suit. See RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute concerning a material fact exists when the evidence presented would permit a reasonable jury to find in favor of the non-movant. See Anderson, 477 U.S. at" } ]

[ { "docid": "6276295", "title": "", "text": "when the contract was made with the contractor providing for the resetting of poles where necessary and the inspection which this necessarily entailed. After that, it would have been absurd for either the Railway Company or the Telegraph Company to have made an inspection of -the poles. They were certainly justified in relying on the contractor to make the poles safe for the work of its own employees when it had undertaken to do this and was to be paid cost plus 20% for doing it. If there was negligence in failing to warn plaintiff of the defective condition of the poles, it was clearly the negligence of the contractor and not of defendants. As plaintiff’s injury occurred in Georgia, the law of Georgia is of course applicable; and very much in point is the Georgia decision of McDade v. West, 80 Ga.App. 481, 56 S.E.2d 299, 302, where an employee of a contractor was injured as the result of the defective condition of a smoke stack which the contractor was employed to paint. In holding that there was no liability on the part of the owner to the injured employee, the court said: “Presumably the independent contractor was employed for his superior knowledge of and experience with smokestacks and possessed the skill necessary to determine the condition of the smokestack. Furthermore, if it could be said that the duty to procure inspection by an expert is the duty of ordinary care, if it is for one party it is the same for another, and the parties had equal means to discover the defects. Our decisions seem to predicate the non-liability of owners of property, or eontractees, to the employees of independent contractors, under circumstances where the work is free from the direction and control of the owner, or contractee, and possession of the premises is not retained by the contractee, either in whole or in part, on the fact that the servants of the contractor, or others coming upon the premises at the invitation of ■the independent contractor, are invitees of the independent contractor and not of the contractee.”" } ]

[ { "docid": "7979448", "title": "", "text": "be determined by the law of the state where the tort occurs because that is the state with the dominant interest concerning that issue.... ”). III. To establish a prima facie case of negligence under North Carolina law, Wolfley must show: (1) that Solectron failed to exercise proper care in the performance of a duty owed him; (2) the negligent breach of that duty was a proximate cause of his injuries; and (3) a person of ordinary prudence should have foreseen that his injuries were probable under the circumstances. See Von Viczay v. Thoms, 140 N.C.App. 737, 538 S.E.2d 629, 630-31 (2000), aff'd per curiam, 353 N.C. 445, 545 S.E.2d 210 (2001). All persons, except trespassers, are owed a duty of reasonable care on a landowner’s property. Grayson v. High Point Dev. Ltd. P’ship, 175 N.C.App. 786, 625 S.E.2d 591, 593 (2006), citing Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882, 892 (1998). “A duty of reasonable care means that a landowner must not expose lawful visitors to danger unnecessarily and must provide such visitors with warnings of hidden hazards of which the landowner has actual or constructive knowledge.” Grayson, 625 S.E.2d at 593. There is no duty, however, to protect or warn a visitor of “dangers either known or so obvious and apparent that they reasonably may be expected to be discovered .... [or] of any apparent hazards or circumstances of which the [visitor] has equal or superior knowledge.” Id. (internal quotation marks omitted); see also Wrenn v. Hillcrest Convalescent Home, Inc., 270 N.C. 447, 154 S.E.2d 483, 484 (1967) (per curiam); Nelson v. Novant Health Triad Region, 159 N.C.App. 440, 583 S.E.2d 415, 418 (2003). “Rather, a reasonable person should be observant to avoid injury from a known and obvious danger.” Von Viczay, 538 S.E.2d at 631 (internal quotation marks and alteration omitted); Roumillat v. Simplistic Enters., Inc., 331 N.C. 57, 414 S.E.2d 339, 344 (1992). “Accordingly, dangerous conditions which are open and obvious do not create liability for a landowner.” Grayson, 625 S.E.2d at 593. In Grayson, the plaintiff slipped on ice and fell while walking" }, { "docid": "6363051", "title": "", "text": "action rests upon Owens’s broad duty to maintain the manlift in a manner rendering it safe for invitees, see Batson-Cook Co. v. Shipley, 134 Ga.App. 210, 212, 214 S.E.2d 176 (1975) (owner of property has duty to exercise ordinary care in keeping premises and approaches safe for invitees), but contends that the jury rendered its verdict under a stricter standard, holding Owens liable as an insurer of Troxler’s safety. The evidence conclusively shows, Owens maintains, that it exercised ordinary care to maintain and operate the lift. By maintaining that it was held liable as an insurer, Owens thus challenges the sufficiency of the evidence to support the jury’s verdict and finding of negligence. We evaluate the sufficiency of the evidence to support denial of the motion for directed verdict and for judgment n.o.v. under Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). See also Smith v. Tennessee Valley Authority, 699 F.2d 1043, 1045 (11th Cir.1983). Under Georgia law an owner, absent negligence, is not an insurer of his premises, see Feldman v. Whipkey’s Drug Shop, 121 Ga.App. 580, 581, 174 S.E.2d 474, 476, cert. denied, 400 U.S. 946, 91 S.Ct. 251, 27 L.Ed.2d 251 (1970), and the law requires an owner to have superior knowledge of a danger on the premises before liability can be imposed, see McIntyre v. Corporate Property Investors, 160 Ga.App. 868, 869, 288 S.E.2d 584, 585 (1982). These cases, however, do not dictate a reversal of the district court’s denial of the post-trial motions in this case. The plaintiff presented the jury with ample evidence of the defendant’s negligence and superior knowledge of the hazard. Troxler contends that he fell from the lift and was injured when he was forced into an object at the top of the building where the lift comes to an end. Troxler maintains that he did not recognize that he was approaching the top floor and the end of the lift because the warnings and safety devices were inadequate or malfunctioning. Troxler presented the following evidence to the jury: (1) the signs warning that one was approaching" }, { "docid": "6916430", "title": "", "text": "PER CURIAM: We clarify our panel opinion in this case by amending Section IV.B as follows: B. The Defendants Had No Duty to Warn In order to defeat the summary judgment, the plaintiffs must offer evidence tending to prove that the defendants knew about a danger created by the design of the wiring and that the failure to warn of that danger was the proximate cause of the injuries alleged. See Talley v. City Tank Corp., 158 Ga.App. 130, 279 S.E.2d 264 (1981). However, there is no duty to warn a purchaser of a physical fact that is open and obvious, or of any potential risk which is equally known and appreciated by both the manufacturer and the purchaser. Herschel McDaniel Funeral Home, Inc. v. Hines, 124 Ga. App. 47, 183 S.E.2d 7, 9 (1971); YMCA v. Bailey, 112 Ga.App. 684, 146 S.E.2d 324 (1965); Gibson v. Consolidated Credit Corp., 110 Ga.App. 170, 138 S.E.2d 77 (1964). The duty to warn extends to the ultimate user of a product. See, e.g., White v. W.G.M. Safety Corp., 707 F.Supp. 544, 547 (S.D.Ga.1988), aff'd 891 F.2d 906 (11th Cir.1989). We need not determine whether, under Georgia law, the Air Force or the pilots are the ultimate users of the C-5A. As discussed, with respect to the government contractor immunity defense, the Air Force was so involved in the C-5A project it knew about the danger — if any — inherent in the circuit design. Therefore, the defendants did not have a duty to warn the Air Force. In addition, the defendants had no duty to give a warning to the pilots because the Air Force was a learned intermediary. See, e.g., Stuckey v. Northern Propane Gas Co., 874 F.2d 1563, 1568-69 (11th Cir.1989) (manufacturer’s duty to warn ultimate consumer is discharged where an intermediary party has knowledge of the danger). We affirm the summary judgment against the plaintiffs on this claim. With this amendment, IT IS ORDERED that the petition for rehearing is DENIED. No active judge of the court or member of the panel has requested an en banc poll, the" }, { "docid": "1803107", "title": "", "text": "falling from Building 127 in a manner not related to this case. . Gypsum Board is a well-known material similar to but stronger than sheetrock and is composed of a gypsum composition impregnated with some type of fiber and covered on the back and front with a layer of heavy paper. Two half-inch layers of this material are then cemented together to form one solid board. . An amendment to this section, which was not furnished to the contractor, is mentioned at a later point in this opinion where it is held not to be helpful to a resolution of the issues involved in this case. . In view of this holding it is not deemed necessary to pass on the additional contention of the government that by the mere fact of his employment to fix the roof Hodge assumed the risks involved in repairing the “very defect\" that occasioned his injuries. See Dartmouth Spinning Company v. Achord, 84 Ga. 14, 16-17, 10 S.E. 449 (1889) ; Fulton Ice and Coal Company v. Pece, 29 Ga.App. 507, 519-520, 116 S.E. 57 (1922) ; Huey v. City of Atlanta, 8 Ga.App. 597, 604, 70 S.E. 71 (1911) ; Lucas v. Southern Ry., 1 Ga.App. 810, 812-813, 57 S.E. 1041 (1907) ; Green v. Babcock Brothers Lumber Company, 130 Ga. 469, 60 S.E. 1062 (1908) . However, as will be seen at a later point in this opinion this court does find occasion for application of the assumption of risk doctrine due to the knowledge that came to Hodge of the latent dangers involved in fixing this particular roof after he had been warned both verbally and by the events of the day of his fall. . It should be pointed out that if the government were in possession of the roof, a warning is all that reasonable care would have required of it under the particular circumstances of this case. This is true because the contractor was to supply all materials necessary for the work, and this is a circumstance which the government as a reasonable landowner would be entitled to" }, { "docid": "15690471", "title": "", "text": "latent or concealed perils such as are not known to the person injured. The landowner must exercise reasonable care to discover possibly dangerous conditions and take reasonable precautions to protect the invitee. Hobby Shops, Inc. v. Drudy, 161 Ind.App. 699, 317 N.E.2d 473, 478 (1974); Louisville Cement Co. v. Mumaw, 448 N.E.2d 1219, 1221 (Ind.App. 1983). A landowner is not, however, an insurer of the safety of invitees, but has a duty to make inspections from time to time as ordinary prudent men would make in a reasonable effort to discover and remedy defects which make premises unsafe. Before a landowner can be held liable to an invitee under premises liability, it must be shown that the landowner had actual or constructive knowledge of the danger. Bearman v. University of Notre Dame, 453 N.E.2d 1196, (Ind.App.1983); Broadhurst v. Davis, 146 Ind.App. 329, 255 N.E.2d 544, 545 (1970). The basis of any premises liability of the landowner to the employee of the independent contractor must be predicated upon the superior knowledge of the landowner of the dangers of the premises. Wingett v. Teledyne Industries, Inc., 479 N.E.2d 51, 54 (Ind.1985); Curl v. Bethlehem Steel Corp., 181 Ind.App. 132, 390 N.E.2d 709, 712 (1979). If it is determined by the court as a matter of law that the landowner owed a duty in this case to the plaintiff, it is then ordinarily a question of fact as to whether the landowner met its duty and was thus not negligent. Bearman v. University of Notre Dame, 453 N.E.2d 1196, (Ind.App.1983); Hobby Shops, Inc., v. Drudy, 161 Ind.App. 699, 317 N.E.2d 473, 478 (1974). If a duty was owed to the plaintiff in this case, it could have been discharged by remedying any latent defects or warning of such defects. Louisville Cement Co., v. Mumaw, 448 N.E.2d 1219, 1221 (Ind.App.1983); Downham v. Wagner, 408 N.E.2d 606, 610 (Ind.App.1980.) Here, the Court finds as a matter of law that Marathon did not breach any duty to the decedent in connection with the hazard that caused his death. Indiana case law makes it clear that a" }, { "docid": "15690474", "title": "", "text": "facts disclose that they are readily apparent. It simply cannot be said that Marathon had superior knowledge to Persinger whose business it was to work in such an environment. The applicable law and undisputed facts mandate summary judgment: [T]he landowner’s duty of care does not extend to dangers which are so obvious and apparent that the invitee may reasonably be expected to discover such dangers himself. If the dangerous condition is observed or should have been observed by the invitee, or if the invitee has been warned of such condition, the landowner’s duty to exercise reasonably care for the protection of that invitee has been met; and the landowner cannot be held liable for injuries to the invitee resulting from that condition. Smith, Landowners’ Liability to an Employee of an Independent Contractor, 19 Yal.U.L.Rev. 633 (1984). See also Howard v. H.J. Ricks Construction Co., 509 N.E.2d 201, 205 (1987), trans den. And, as the Seventh Circuit has written, “An owner [in Indiana] is not liable for negligent injuries to an employee of an independent contrac tor unless he actively participated in the negligent act causing the injury or unless he failed to warn of hidden dangers on the premises of which he had or ought to have had knowledge and of which the employee had not.” Nagler v. United States Steel Corp., 486 F.2d 794, 797 (7th Cir.1973) (emphasis added). Because Persinger, the independent contractor hired to perform this dangerous work, had at least equal or superior knowledge of the hazards, Marathon cannot be held liable here. C. Persinger’s Contributory Negligence: Although the Court has found as a matter of law that there is no basis of imposing liability on Marathon for its acts or omissions, the Court will nonetheless address the issues of contributory negligence and assumption of risk to demonstrate further that plaintiff cannot prevail under these facts. Under the law of contributory negligence as it existed in Indiana at the time of the accident, an act or omission of the plaintiff constituting negligence that contributed to his injury operates to defeat recovery from the defendant. Clem v." }, { "docid": "1803108", "title": "", "text": "Ga.App. 507, 519-520, 116 S.E. 57 (1922) ; Huey v. City of Atlanta, 8 Ga.App. 597, 604, 70 S.E. 71 (1911) ; Lucas v. Southern Ry., 1 Ga.App. 810, 812-813, 57 S.E. 1041 (1907) ; Green v. Babcock Brothers Lumber Company, 130 Ga. 469, 60 S.E. 1062 (1908) . However, as will be seen at a later point in this opinion this court does find occasion for application of the assumption of risk doctrine due to the knowledge that came to Hodge of the latent dangers involved in fixing this particular roof after he had been warned both verbally and by the events of the day of his fall. . It should be pointed out that if the government were in possession of the roof, a warning is all that reasonable care would have required of it under the particular circumstances of this case. This is true because the contractor was to supply all materials necessary for the work, and this is a circumstance which the government as a reasonable landowner would be entitled to take into consideration in deciding whether to warn or to install devices to make the premises safe. Especially is this so where, as here, the landowner had no reason to suspect that the contractor would not take the necessary measures to guard against the danger of which he had been warned. This would not amount to a delegation of the government’s duty but would merely be the choosing of one method of personally discharging the duty over another method. . In an effort to show that the government should have included in the contract a provision requiring the use of safety nets by the contractor, the plaintiffs introduced into evidence a Corps of Engineers regulation amending the safety manual (which was made a part of the contract). It is sufficient to say of this regulation that its applicability to this case would depend on a determination of whether or not the roofing operation could be accomplished from adequately guarded staging, scaffolds or platforms. Since this court has found and held that the operation could be" }, { "docid": "1803085", "title": "", "text": "* * * Mr. Chambless told us in front of the boys the he would definitely see that they would have walk boards placed for the employees.” (Record at 535). He therefore cannot complain of any lack of warning by the government even if the government were under a duty to give him a personal warning. “ ‘The rules governing the land proprietor’s duty to his invitee presuppose that the possessor knows of the condition and “has no reason to believe that they (his invitees) will discover the condition or realize the risk involved therein.” 2 Restatement, Law of Torts, Sec. 343. The basis of the proprietor’s liability is his superior knowledge and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting, in view of his knowledge, assumes the risks and dangers incident to the known condition.’ ” Hunt v. Thomasville Baseball Company, 80 Ga.App. 572, 573, 56 S.E.2d 828, 829 (1949) (quoting from Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 164 S.W.2d 318). Accord, Rogers v. Atlanta Enterprises, Inc., 89 Ga.App. 903, 906, 81 S.E.2d 721 (1954). Contentions numbers 3, 4 and 13 all express the idea contained in section 413 of the Restatement of Torts, Second, that where a contractee engages a contractor to perform work which the contractee should realize is likely to cre ate an unreasonable risk of danger to others unless special precautions are taken, such contractee is liable for harm caused by the absence of such precautions if he “(a) fails to provide in the contract that the contractor shall take such precautions, or (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.” That this section states the law in Georgia is asserted by the plaintiffs to be shown by some dicta in Georgia Power Company v. Gillespie, 49 Ga.App. 788, 793-794, 176 S.E. 786 (1934)." }, { "docid": "11412787", "title": "", "text": "182 Ga.App. 778, 357 S.E.2d 127, 130 (1987). In the instant case, Thornton’s use of Du Pont 3608S to remove glue from the floor of the Giddens’ home could not reasonably be foreseen by Du Pont. While it may be foreseeable that employees might use products obtainable at the workplace for their own personal use rather than buying said products at retail prices, it is unlikely that manufacturers would envision the wife of the owner of a business establishment taking a product from the workplace to her home for use by someone unconnected with her husband’s business. Thornton’s misuse of the product is the proximate cause of his injuries, therefore, he is precluded from recovery. See, Union Carbide Corp. v. Holton, 136 Ga.App. 726, 222 S.E.2d 105, 108-109 (1975) (plaintiff precluded from recovery where injury caused by unforeseeable misuse of product); Roy v. Star Chopper Co., Inc., 442 F.Supp. 1010, 1019 (D.R.I.1977) (misuse is a complete defense to liability based on any theory); Higgins v. E.I. Du Pont de Nemours & Company, 863 F.2d 1162, 1167 (4th Cir.1988) (misuse precluded recovery against the manufacturer); Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841, 856 (5th Cir.1967) (manufacturer not liable for abnormal handling of product). b. Adequacy of the Warning Thornton alleges that Du Pont is strictly liable under OCGA § 51-1-11. Strict liability is not imposed under OCGA § 51 — 1—11(b) merely because a product may be dangerous. Copeland v. Ashland Oil, Inc., 188 Ga.App. 537, 373 S.E.2d 629, 630 (1988) (citation omitted). If products are properly prepared, manufactured, packaged and accompanied with adequate warnings and instructions, they cannot be said to be defective. Id. Under Georgia law, a manufacturer has a duty to warn of nonobvious foreseeable dangers from the normal use of its product. Stovall & Co. v. Tate, 124 Ga.App. 605, 184 S.E.2d 834, 837 (1971); Poppell v. Waters, 126 Ga.App. 385, 190 S.E.2d 815, 817 (1972). This duty may be breached by (1) failing to adequately communicate the warning to the ultimate user or (2) failing to provide an adequate warning of the product’s potential" }, { "docid": "16513779", "title": "", "text": "of high voltage wire); Aretz v. United States, 604 F.2d 417 (5th Cir.1979) (failure to label substance as explosive); Smith v. United States, 546 F.2d 872 (10th Cir.1976) (citing cases) (failure as landowner to post warning signs in national park); Stephens v. United States, 472 F.Supp. 998, 1009 (C.D.Ill.1979) (same); United States v. White, 211 F.2d 79 (9th Cir.1954) (failure of government as land owner to warn business invitee of danger from unexploded projectiles); Pierce v. United States, 142 F.Supp. 721 (E.D.Tenn.1955), aff'd, 235 F.2d 466 (6th Cir.1956) (failure to warn lineman of dangerous conditions in government-owned transmission facility); Annotation, Liability of United States for Failure to Warn of Danger or Hazard Resulting from Governmental Act or Omission as Affected by “Discretionary Function or Duty’’ Exception to Federal Tort Claims Act, 65 A.L.R.Fed. 358 (1983). See also Henderson v. United States, 784 F.2d 942, 943 n. 2 (9th Cir.1986) (safety decisions at government facility are operational in nature, and therefore not within the discretionary function exception); Merklin v. United States, 788 F.2d 172, 177 (3rd Cir.1986) (duty of government as supplier of dangerous chattel to warn those who will foreseeably come in contact with the product of its inherent risks not within the exception). Perhaps the district court’s analysis in Pierce, by analogy, best summarizes our conclusion in this case: The initial decision to construct [electrical substations] and the decision to reactivate surely involved an exercise of discretion for which no liability attaches. Also the decision to undertake the reactivation work at the particular time it was commenced and similar decision going to the over-all success of the project would necessarily involve decisions at high level in which the exercise of discretion in the choice of various alternative courses of action would be involved. Even the decision to construct electrical substations and bring high-voltage power onto the premises would constitute discretionary functions. However, the Court is unable to go further and say that once the discretion was exercised to construct substations, any discretion was involved in the subsequent ... failure to warn work men of its dangerous condition when the" }, { "docid": "9640663", "title": "", "text": "the relevant law, we find that the district court’s order must be affirmed. The general rule in Georgia is that one has no duty to warn or protect another person from a foreseeable risk of harm simply because of one’s knowledge of the danger. See Bradley Center, Inc. v. Wessner, 250 Ga. 199, 201, 296 S.E.2d 693 (1982); Thomas v. Williams, 105 Ga.App. 321, 124 S.E.2d 409 (1962). In other words, the mere foreseeability of injury to another person does not of itself create a duty to act. This rule is not applicable in three distinct factual situations, however, and appellant contends that each of the three exceptions is present here. First, the duty to protect or warn against danger will arise if the defendant has in any way taken an affirmative step to create the danger. In the recent case of United States v. Aretz, 248 Ga. 19, 26, 280 S.E.2d 345, 350 (1981), the Georgia Supreme Court held that “where one by his own act, although without negligence on his part, creates a dangerous situation, he is under a duty to remove the hazard or give warning of the danger so as to prevent others from being injured where it is reasonably foreseeable that this will occur.” In that case, the United States Army provided one of its contractors with mistaken information concerning the appropriate storage classification of explosive materials. The Army later realized the mistake, but failed to communicate it to the contractor, and the materials exploded causing injury and death to several of the contractor’s employees. The Georgia court, upon certification from the Fifth Circuit Court of Appeals, held that the Army’s failure to inform the contractor of the change in classification was a breach of duty which arose when the Army mistakenly classified the materials in the first place. The Aretz decision relied heavily on an earlier Georgia case, Hardy v. Brooks, 103 Ga. App. 124, 118 S.E.2d 492 (1961), where the defendant hit and killed a cow without negligence while driving his car on a public road. The Georgia Court of Appeals held that" }, { "docid": "1803076", "title": "", "text": "is, the direct arrangements made by the contracting officer who took the plaintiff to the building in question and arranged for his employment by the contractor, these steps being taken with full knowledge of the hazardous nature of the work to be performed and with full knowledge of the youth and total inexperience of the plaintiff. 15. “The Government was negligent in its direction of the work and the safety precautions of the people working on the roof of said building.” In contention numbers 1 and 2, the plaintiffs seek to hold the government liable for breaching its obligation as a landowner set forth as follows in Ga. Code Ann. section 105-401: “Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.” This court finds and holds that this statute does not apply to the government under the facts of this case since the government was not in possession and control of the portion of the roof subject to the contract, and that, even if the statute were applicable, the government used reasonable care to keep its premises safe by giving the contractor warning of the condition of the roof and advising him of the recommended precautions, and that, in any event, Hodge was warned of the dangerous condition of the roof, by Mr. Greer, the Contracting Officer for the base, and by the happenings on the roof on the day of his fall. Under Georgia law, a landowner or one in possession of land is relieved of the duties of a landowner to those who come onto the premises when possession and control of the land is surrendered to an independent contractor. Butler v. Lewman, 115 Ga. 752, 756, 42 S.E. 98 (1902) ; Central of Georgia Ry. v. Lawley, 33 Ga.App. 375(4), 126 S.E. 273 (1924); Newburn v. Healey Real Estate and Improvement Company, 17 Ga.App. 217(1), 86" }, { "docid": "17754679", "title": "", "text": "were not designed as a walking surface. Even assuming arguendo that it was not reasonably apparent that the plexiglás panel would not bear plaintiff’s weight, the court is of the opinion that TVA discharged its duty to warn or protect against the dangerous condition of the skylight. As noted previously, TVA officials had discussed the dangers of the skylights with Mr. Aaron, Tarbuk’s supervisor on the job site at Cumberland City. TVA had instructed Aaron that workers having occasion to go up on the skylights, should be tied off to a safety line and that they should walk only on the metal ribs. Aaron testified that he knew the plexiglás panels were dangerous and that he had instructed most of his employees that they should walk only on the ribs. Aaron’s instructions were that apprentices should not work on the skylights. Unfortunately, plaintiff was not informed of Aaron’s instructions, nor was he given instructions of any sort with regard to the appropriate safety precautions to be taken when working on the barrel vaults. Nonetheless, this court is of the opinion that TVA took reasonable precautions by virtue of its warning to Aaron and its instruction that workers on the skylights should be tied off to a safety line. The impracticality of requiring TVA to be responsible for warning each individual employee of an independent contractor with regard to every hazard on the construction site is obvious. See Brown v. American Cyanamid & Chemical Corp., 372 F.Supp. 311, 316 (S.D.Ga.1973). Plaintiff cites the case of Womble v. J. C. Penney Co., 431 F.2d 985 (6th Cir. 1970) for the proposition that under Tennessee law, circumstances may be such that, notice to an employer of a danger does not constitute notice to an employee. At best, this legal proposition was mere dictum in the Womble case, because the trial court had expressly stated: “The Court does not recall any evidence that plaintiff’s boss knew of the dangerous condition in the floor which resulted in the injuries to plaintiff. . .” Womble v. J. C. Penney Co., 47 F.R.D. 350, 354 (E.D.Tenn.1969) This" }, { "docid": "11412790", "title": "", "text": "must be evaluated in conjunction with the knowledge and expertise of those who may be reasonably expected to use or otherwise come in contact with the product as it proceeds along its intended marketing chain. Martinez v. Dixie Carriers, Inc., 529 F.2d 457, 465-466 (5th Cir.1976). See also, Stiltjes v. Ridco Exterminating Co., 178 Ga.App.438, 343 S.E.2d 715, 719 (1986), aff'd, 256 Ga.255, 347 S.E.2d 568 (1986) (where product sold to particular group or profession, manufacturer is not required to warn against risks generally known to such group or profession). The record reveals that Du Pont marketed the subject product solely to professionals. The product carried a warning of the hazards connected with its use. Said warning was reasonably calculated to reach the average user and contained clear and simple language. The general rule in Georgia is that the adequacy of the warning is an issue for the jury. Watson v. Uniden Corp. of America, 775 F.2d 1514, 1516 (11th Cir.1985); White v. W.G.M. Safety Corp., 707 F.Supp. 544, 549 (S.D.Ga.1988); Copeland v. Ashland Oil, Inc., 188 Ga.App. 537, 373 S.E.2d 629, 630 (1988). Whether adequate efforts were made to communicate a warning to the ultimate user and whether the warning if communicated was adequate are uniformly held questions for the jury. Stapleton v. Kawasaki Heavy Indus., Ltd., 608 F.2d 571, 573 (5th Cir.1979) (citations omitted). The undisputed facts in this case establish that the product was marketed through distributors for use by professionals and that the product carried a warning of the hazards connected with its use. In addition, a MSDS was provided that detailed the characteristics of the product. Summary judgment is appropriate where, as in this case, the facts support only one conclusion, that is, the warning and its communication were adequate. c. Failure to Read the Warning Georgia courts have held that a plaintiffs failure to read a warning printed on a product constitutes contributory negligence and precludes recovery against the product’s manufacturer. Cobb Heating and Air Conditioning Co. v. Hertron Chemical Co., 139 Ga.App. 803, 229 S.E.2d 681, 682 (1976); Parzini v. Center Chemical Co.," }, { "docid": "23590384", "title": "", "text": "that every person owes a duty of ordinary care not to injure third persons whether or not in some contractual relationship. The existence of the duty is “invariable,” Delta Airlines, Inc. v. Garmon, 139 Ga.App. 146, 150, 227 S.E.2d 816 (1976), quoting Wright v. Dilbeck, 122 Ga.App. 214, 228, 176 S.E.2d 715 (1970). What constitutes ordinary care “varies with the instrumentality dealt with; where it is inherently dangerous, more care is necessary in regard to it than where it is, according to common experience, a thing relatively harmless . . . .” Id., 99 Ga.App. at 432, 108 S.E.2d at 816. Accord, e. g., Williams v. United States, 352 F.2d 477, 481 (5th Cir. 1965) (interpreting Georgia law). This Court has called the role of foreseeability in Georgia law as “talismanic.” [I]n order for a party to be liable as for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result. Williams v. Grier, 196 Ga. 327, 337-38, 26 S.E.2d 698, 705 (1943). Accord Smith v. American Oil Co., 77 Ga.App. 463, 499, 49 S.E.2d 90 (1948). Since foreseeability and ordinary care vary under the circumstances, these are ordinarily questions for the fact-finder. E. g. Gross v. Southern Railway Co., 414 F.2d 292, 301 (5th Cir. 1969); Bus-sey v. Dawson, 224 Ga. 191, 193-94, 160 S.E.2d 834 (1968). In this case the district court found that the government was warned as early as 1968 and knew three month’s before the accident at Woodbine that the hazard created by pyrotechnic illuminants was seriously underrated by its hazard classification system, that fires were commonplace in pyrotechnic manufacture, that the government knew from its annual safety inspection as well as other precontract safety inspections of Building M-132 the layout and condition in that building, and that the government had general control over the safety standards for handling hazardous materials in the flare manufacturing process" }, { "docid": "1803077", "title": "", "text": "government under the facts of this case since the government was not in possession and control of the portion of the roof subject to the contract, and that, even if the statute were applicable, the government used reasonable care to keep its premises safe by giving the contractor warning of the condition of the roof and advising him of the recommended precautions, and that, in any event, Hodge was warned of the dangerous condition of the roof, by Mr. Greer, the Contracting Officer for the base, and by the happenings on the roof on the day of his fall. Under Georgia law, a landowner or one in possession of land is relieved of the duties of a landowner to those who come onto the premises when possession and control of the land is surrendered to an independent contractor. Butler v. Lewman, 115 Ga. 752, 756, 42 S.E. 98 (1902) ; Central of Georgia Ry. v. Lawley, 33 Ga.App. 375(4), 126 S.E. 273 (1924); Newburn v. Healey Real Estate and Improvement Company, 17 Ga.App. 217(1), 86 S.E. 429 (1915); Johnson v. Western & Atlantic R. R., 4 Ga.App. 131, 134-135, 60 S.E. 1023 (1908). See also, Scott Paper Company v. Cooper, 403 F.2d 526 (5th Cir. 1968). (Alabama law). The contractor then becomes the “occupier” of the land within the meaning of the Georgia statute. Tyler v. Peel Corporation, 371 F.2d 788, 790 (5th Cir. 1967). If such possession and control were still in the landowner, it would be no defense to him that the defective condition causing the injury was created by independent contractor if the landowner, by the exercise of ordinary care could have discovered the defect. Hickman v. Toole, 35 Ga.App. 697, 134 S.E. 635 (1926). Possession may be defined as having personal charge of or exercising the rights of management or control over the property in question. Custody and control are the commonly accepted and generally understood incidents of possession. This court is convinced and finds that the contractor was in possession of that portion of the roof which was the subject of the contract. Georgia law" }, { "docid": "1803083", "title": "", "text": "this job. In addition, once an area was roped off, it would remain that way for at least a day. Moreover, the contractor had a 60-day time limit in which to complete the roofing project, and by the very nature of this operation he could not be expected to skip portions of the old roof under which operations were being conducted and come back later to repair such portions. The practical aspects of this job therefore indicate that, had a conflict arisen, the contractor would have prevailed (except perhaps if there were an emergency necessitating a maximum flow of wartime materials). This court’s findings as to possession and control must therefore stand. Even if it is assumed that the duties of a landowner still were upon the government and that it had actual knowledge of the hidden dangerous defect, the government’s duty to use reasonable care to make the premises safe for invitees was discharged under the circumstances of this case by giving a clear warning to the contractor (as proposed to his individual employees) both of the condition of the roof and of the recommended method of assuring safety to the workers thereon (the use of plywood walkways). Whitlow v. Seaboard Air Line R. R., 222 F.2d 57 (4th Cir. 1955) (applying Georgia law). See also Gulf Oil Corporation v. Bivins, 276 F.2d 753 (5th Cir. 1960) (Texas law). As a further stumbling block to the plaintiffs’ ability to recover for breach of the statutory obligations of landowner, it is clear that from his experiences on the day of the accident (witnessing Norman’s fall, pushing his own foot through the roof, and handling broken up pieces of Gypsum Board decking) Hodge had as much actual knowledge of the danger as a reasonable warning could have given. Moreover, he was given an actual warning by Mr. Greer, the Contracting Officer for the base, who testified: “I told them [Hodge, Norman and other boys] it was deemed to be a dangerous job * * * and the contractor was required to place walk boards and they would have to be careful." }, { "docid": "1803084", "title": "", "text": "both of the condition of the roof and of the recommended method of assuring safety to the workers thereon (the use of plywood walkways). Whitlow v. Seaboard Air Line R. R., 222 F.2d 57 (4th Cir. 1955) (applying Georgia law). See also Gulf Oil Corporation v. Bivins, 276 F.2d 753 (5th Cir. 1960) (Texas law). As a further stumbling block to the plaintiffs’ ability to recover for breach of the statutory obligations of landowner, it is clear that from his experiences on the day of the accident (witnessing Norman’s fall, pushing his own foot through the roof, and handling broken up pieces of Gypsum Board decking) Hodge had as much actual knowledge of the danger as a reasonable warning could have given. Moreover, he was given an actual warning by Mr. Greer, the Contracting Officer for the base, who testified: “I told them [Hodge, Norman and other boys] it was deemed to be a dangerous job * * * and the contractor was required to place walk boards and they would have to be careful. * * * Mr. Chambless told us in front of the boys the he would definitely see that they would have walk boards placed for the employees.” (Record at 535). He therefore cannot complain of any lack of warning by the government even if the government were under a duty to give him a personal warning. “ ‘The rules governing the land proprietor’s duty to his invitee presuppose that the possessor knows of the condition and “has no reason to believe that they (his invitees) will discover the condition or realize the risk involved therein.” 2 Restatement, Law of Torts, Sec. 343. The basis of the proprietor’s liability is his superior knowledge and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting, in view of his knowledge, assumes the risks and dangers incident to the known condition.’ ”" }, { "docid": "17754680", "title": "", "text": "court is of the opinion that TVA took reasonable precautions by virtue of its warning to Aaron and its instruction that workers on the skylights should be tied off to a safety line. The impracticality of requiring TVA to be responsible for warning each individual employee of an independent contractor with regard to every hazard on the construction site is obvious. See Brown v. American Cyanamid & Chemical Corp., 372 F.Supp. 311, 316 (S.D.Ga.1973). Plaintiff cites the case of Womble v. J. C. Penney Co., 431 F.2d 985 (6th Cir. 1970) for the proposition that under Tennessee law, circumstances may be such that, notice to an employer of a danger does not constitute notice to an employee. At best, this legal proposition was mere dictum in the Womble case, because the trial court had expressly stated: “The Court does not recall any evidence that plaintiff’s boss knew of the dangerous condition in the floor which resulted in the injuries to plaintiff. . .” Womble v. J. C. Penney Co., 47 F.R.D. 350, 354 (E.D.Tenn.1969) This court does recognize that there may be certain circumstances under which the owner of the premises would not discharge his duty by warning the employer; one example of such circumstances would be a case in which it should have been obvious to the owner that the employer would not properly warn his employees. However, the evidence offered at trial did not indicate that TVA should have been aware that Tarbuk would send an inexperienced apprentice up on the skylights without warning him of the dangers and affording him appropriate safety equipment and instructions. Thus, under the circumstances involved in this case, notice to Tarbuk must be considered to have discharged TVA’s duty to warn of the dangers. Plaintiff also argues that the warning by TVA did not specifically include the latent defect in the premises, inasmuch as the patched hole in the plexiglás panel was a major factor in reducing the weight-bearing capacity of that panel. Thus, plaintiff insists that the warning given by TVA was inadequate. However, the court is of the opinion that" }, { "docid": "1803102", "title": "", "text": "all contracts performed by him at Robins Air Force Base prior to this contract he had performed satisfactorily and had had no injuries among his employees on the job. (Record at 546). The only evidence of incompetency is testimony to the effect that Chambless was negligent in his supervision of the work on this contract and that he had no formal safety program. This showing is insufficient to establish incompetency. The record does not support the conclusion that the government failed to exercise due care in the selection of Chambless for the contract. The most that need be said in answer to contention number 12, that the government was negligent in permitting the contractor to use inexperienced employees, is that this court knows of no theory that would impose on the contractee the duty to the contractor’s employees of seeing to it that the contractor employs only those workers with experience. Especially is this so where, as here, experience was not necessary to the safety of a properly warned employee, and the contractee had relinquished possession and control over his premises to the contractor. Since the plaintiffs have not shown that the government was guilty of negligence in connection with any directing of the work or the safety precautions to be used by the employees of the contractor, the plaintiffs cannot prevail under contention number 15. Likewise, with respect to contention number 14, this court finds no negligence in the part that the Air Force played in Hodge's being hired by the contractor. The job would not have been unreasonably dangerous even' to an inexperienced worker had he been properly warned by the contractor. A contractee “ ‘has a right to rely on the presumption that the contractor will discharge his legal duties owing to his employees’ ” Georgia Power Company v. Gillespie, 49 Ga.App. 788, 794, 176 S.E. 786 (1934), among which is the obligation of an employer under Ga.Code Ann. section 66-301 to warn employees of dangers in the employment unknown to the employee of which the employer knows or should know. Were we wrong in our finding" } ]

[ { "docid": "5761041", "title": "", "text": "are one for purposes of res judicata if they are based on the same, or nearly the same, factual allegations.” Herrmann v. Cencom Cable Assocs., 999 F.2d 223, 226 (7th Cir.1993). The doctrine of collateral estoppel — issue preclusion — is narrower. For collateral estoppel to apply, “(1) the issue sought' to be precluded must be the same as that involved in the prior litigation, (2) the issue must have been actually litigated, (3) the determination of the issue must have been essential to the final judgment, and (4) the party against whom estoppel is invoked must be fully represented in the prior action.” H-D Mich., Inc. v. Top Quality Serv., Inc., 496 F.3d 755, 760 (7th Cir.2007) (quotation marks omitted). We start by noting our general agreement with the district court that the claims Matrix advances in this case are based on the same core of operative facts as the claims it litigated and lost in the bankruptcy proceedings. It makes no difference that the earlier claims took a different form — that is, an equitable-subordination defense in the lien-priority adversary proceeding and an objection to the bankruptcy asset sale on the ground that J.R. Plastics was not a good-faith purchaser. It’s quite clear that the allegations of fraud Matrix asserted in the Stylemaster bankruptcy are the same basic allegations it makes here: (1) Style-master built up its inventory with goods from Matrix that it had no intention of paying for; (2) its principals formed a new corporate entity, J.R. Plastics, to buy Stylemaster’s assets at a reduced price in a bankruptcy sale; (3) Stylemaster arranged a line of credit with ANB secured by Stylemaster’s unpaid-for inventory; arid (4) Stylemaster and ANB conspired to establish the priority of ANB’s lien over Matrix’s. Under well-established claim-preclusion doctrine, this common nucleus of operative facts means the claims are the same even though they involve different legal theories. See Alvear-Velez, 540 F.3d at 677 (holding that a “claim” consists of the underlying factual events rather than the legal theories advanced). Matrix insists that the claims cannot be the same because the alleged" } ]

[ { "docid": "12907864", "title": "", "text": "be estopped from advancing a position that he or she has presented and lost in a prior proceeding against a different adversary.”). Under the circumstances, including the different defendants in the two actions, we think that issue preclusion, rather than claim preclusion, should govern our analysis. See Prusky v. ReliaStar Life Ins. Co., 532 F.3d 252, 265 (3d Cir.2008); see also Restatement (Second) of Judgments § 26(l)(c) cmt. c (discussing “formal barriers” to presenting “theories of recovery or demands for relief’ in prior actions). Thus, we must determine whether the prerequisites of issue preclusion are satisfied. The doctrine acts to prevent relitigation when “(1) the issue sought to be precluded [is] the same as that involved in the prior action; (2) that issue [was] actually litigated; (3) it [was] determined by a final and valid judgment; and (4) the determination [was] essential to the prior judgment.” Burlington N. R.R. Co. v. Hyundai Merch. Marine Co., 63 F.3d 1227, 1231-32 (3d Cir.1995) (alterations in original, quotation marks and citation omitted). While preclusion generally does not bar claims asserted within habeas proceedings, a “prior federal habeas decision may have preclusive effect in a [civil rights] action.” Hawkins v. Risley, 984 F.2d 321, 323 & n. 4 (9th Cir.1993); see also Heirens v. Mi-zell, 729 F.2d 449, 456 (7th Cir.1984). It is clear that Reaves’s constitutional claims, as well as the separate factual issues underlying the same, were fully and actually litigated in the prior habeas corpus action. The District Court explained why none of the complained-of conduct violated Reaves’s rights under the Ex Post Facto Clause, the Eighth Amendment, or the Fourteenth Amendment. In the process, it determined that the “1000 feet” requirement was not actually the rationale behind the denial of the home plans and that Reaves had failed to show how the plea agreement was breached. Reaves cannot relitigate these issues. Therefore, with regard to the constitutional claims, we hold that the prior habeas litigation adequately addressed them and possesses a sufficient degree of finality to have a pre-clusive effect on this suit. Reaves also raised a Fair Housing Act" }, { "docid": "22223870", "title": "", "text": "all allowed secured claims would be paid in full, with unsecured creditors to receive a percentage of their allowed claims. On September 3, Sherman & Sherman filed a proof of claim on behalf of FMB. The proof of claim listed the value of the Chevrolet as $19,841.43, an amount greater than the car’s original purchase price. Mr. Adair did not object to the valuation of the car prior to confirmation. The Chapter 13 trustee confirmed Mr. Adair’s bankruptcy plan on September 15, and allowed FMB’s claim as fully secured. In June 1998, Mr. Adair filed an adversary proceeding in the bankruptcy court challenging FMB’s proof of claim; that proceeding was dismissed when Mr. Adair’s Chapter 13 proceeding was dismissed altogether. Mr. Adair subsequently filed this FDCPA complaint in district court, seeking damages for what he alleged was Sherman & Sherman’s practice of overvaluing collateral in proofs of claims filed with the bankruptcy court. He contends that Sherman & Sherman overvalued collateral fraudulently, in order to establish as secured claims that should have been unsecured. The district court granted Sherman & Sherman’s motion to dismiss and held that the action was barred by claim preclusion, also known as res judicata. II DISCUSSION Although the district court articulated its decision in terms of claim preclusion, we believe that this case is more appropriately analyzed under the closely related, although analytically distinct, doctrine of collateral estoppel or issue preclusion. Under the doctrine of issue preclusion, an issue may not be litigated if the following conditions are met: (1) the issue sought to be precluded is the same as that involved in a prior action; (2) the issue was actually litigated; (3) the determination of the issue was essential to the final judgment; and (4) the party against whom estoppel is invoked was represented in the prior action. See Chicago Truck Drivers, Helpers & Warehouse Union (Indep.) Pension Fund v. Century Motor Freight, Inc., 125 F.3d 526, 530 (7th Cir.1997); La Preferida, Inc. v. Cerveceria Modelo, 914 F.2d 900, 905-06 (7th Cir.1990). As the Supreme Court of the United States has stated: “Under collateral" }, { "docid": "11309477", "title": "", "text": "as would be given that judgment under the law of the State in which the judgment was rendered”); In re Calvert, 105 F.3d at 317. Because the state court judgment in this case was rendered by a Michigan state court, this court must give the judgment the same preclusive effect that any Michigan court would give the judgment. Under Michigan law, collateral es-toppel precludes re-litigation of an issue in a subsequent, different cause of action between the same parties where the prior proceeding resulted in a valid, final judgment and the issue was (1) actually litigated and (2) necessarily determined. People v. Gates, 434 Mich. 146, 452 N.W.2d 627, 630 (1990). In this adversary proceeding, there is no dispute that the state court litigation involved the same parties or that the state court entered a valid, final judgment. The only question is whether the issues regarding the Debtor’s asserted “willful and malicious” conduct were “actually litigated” and “necessarily determined” by the state court. 1. Was the State Court Judgment “Actually Litigated? ” The Debtor argues that the relevant factual and legal issues were not “actually litigated” in the state court because the state court judgment was entered as a result of his failure to appear at the settlement conference rather than after a trial on the merits. This court has previously held that “true default” judgments, i.e., those entered after the defendant fails to file an answer or otherwise defend in the state court action, do not meet the “actually litigated” requirement and are not entitled to collateral estoppel effect under Michigan law. In re Kalita, 202 B.R. at 913. In a recent decision, the Bankruptcy Appellate Panel for the Sixth Circuit has also held that a true default judgment is not entitled to preclusive effect in a subsequent nondischargeability action. In re Phillips, 434 B.R. at 486-87 (applying Michigan law, state court judgment should be given collateral estoppel effect “only where there is sufficient participation by the parties to meet the actually litigated requirement;” requirement was not met when defendants never filed an answer or participated in the lawsuit" }, { "docid": "5226956", "title": "", "text": "knowledge that injury is substantially certain to result from his acts to establish the intent required in Geiger. See In re Markowitz, 190 F.3d 455 (6th Cir.1999); In re Cox, 243 B.R. 713, 719 (Bankr.N.D.Ill.2000); In re Budig, 240 B.R. 397 (D.Kan.1999); In re Kidd, 219 B.R. 278 (Bankr.D.Mont.1998). To prove malice, a creditor must show that the debtor’s willful, injurious conduct was undertaken without just cause or excuse. In re Slosberg, 225 B.R. 9, 21 (Bankr.D.Me.1998). See also In re Thirt-yacre, 36 F.3d 697, 700 (7th Cir.1994) (“Malicious” means “in conscious disregard of one’s duties or without just cause or excuse”.) The doctrine of collateral estoppel (issue preclusion) applies to adversary proceedings brought pursuant to 11 U.S.C. § 523(a). Grogan v. Garner, 498 U.S. 279, 284, n. 11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Under this doctrine, issues determined in a prior state court proceeding may not be re-litigated in the bankruptcy court. Stephan v. Rocky Mountain Chocolate Factory, Inc., 136 F.3d 1134, 1136 (7th Cir.1998); Meyer v. Rigdon, 36 F.3d 1375, 1378 (7th Cir.1994). However, the bankruptcy court has exclusive jurisdiction to determine the dischargeability of the debts. See 11 U.S.C. § 523(c)(1). In the Seventh Circuit, four requirements must be met in order for collateral estoppel to apply: 1. the issue sought to be precluded must be the same as that involved in the prior litigation; 2. the issue must have been actually litigated; 3. the determination of the issue must have been essential to the final judgment; and 4. the party against whom estoppel is invoked must be fully represented in the prior action. Meyer v. Rigdon, supra, 36 F.3d at 1379; Klingman v. Levinson, 831 F.2d 1292, 1295 (7th Cir.1987). A bankruptcy court is required to give an Illinois state court judgments the same full faith and credit as they have by law or usage in the Illinois courts. 28 U.S.C. § 1738. Accordingly, this Court is required to give preclusive effect to Illinois state court judgments whenever the Illinois courts would do so. In re Winston, 114 B.R. 566, 571 (Bankr.N.D.Ill.1990). In this" }, { "docid": "4543309", "title": "", "text": "to give collateral estop-pel effect to the Arbitration Award for purposes of determining the non-dis-chargeability of the debt at issue in this adversary proceeding. It is well-settled that collateral estoppel can be applied in bankruptcy to determine dischargeability claims. See Grogan v. Garner, 498 U.S. 279, 284-85 n. 11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (clarifying that “collateral estoppel principles do indeed apply in discharge exception proceedings pursuant to § 523(a).”). Further, courts, including bankruptcy courts, have given arbitration awards preclusive effect in subsequent litigation, even in the absence of confirmation of the award. Whether it is appropriate to give collateral estoppel effect in a particular instance depends on applicable state law. Rosendahl, 307 B.R. at 208 (stating that “the preclusion effects of decisions of state tribunals in bankruptcy court are determined by the preclusion law of the concerned state” and applying California law to determine whether the arbitration award resulting from arbitration conducted in California was entitled to pre-clusive effect). Here, the arbitration was conducted in Arizona, and the Arbitrator’s factual findings that Plaintiffs assert have collateral estoppel effect were issued in the Arizona Arbitration Case. Accordingly, the Court will look to the collateral estoppel law of Arizona. Under Arizona law, collateral estoppel will preclude a party from contesting an issue litigated in a prior proceeding if the following requirements are met: 1) the issue was actually litigated in the prior proceeding; 2) the parties had a full and fair opportunity and motive to litigate the issue; 3) the prior decision was a valid and final decision on the merits; 4) resolution of the issue was essential to the prior decision; and 5)the parties to the prior action are the same (or in privity with a party to the prior action). Campbell v. SZL Properties, Ltd., 204 Ariz. 221, 223, 62 P.3d 966, 968 (Ct.App.2003) (citing Garcia v. Gen. Motors Corp., 195 Ariz. 510, 514, 990 P.2d 1069, 1073 (Ct.App.1999)); See also, In re Guccione, 268 B.R. 10, 14-15 (Bankr.E.D.N.Y.2001) (same) (citing Collins v. Miller & Miller, Ltd., 189 Ariz. 387, 397, 943 P.2d 774 [747], 757 (1996))." }, { "docid": "16299947", "title": "", "text": "to suffer substantial losses. Raytheon has argued that the bankruptcy court erred in its application of the three-year rule in the Mechanic’s Lien Act. Bell Boyd responds that it is too late in the day to challenge that ruling, because it is entitled to preclusive effect in the present case. Because we are considering what effect should be given to the judgment of the Delaware bankruptcy court, which is a unit of the district court, see 28 U.S.C. § 151, we apply the federal common law of issue preclusion. Under that law, a party seeking to invoke preclusion must show four things: 1) the issue sought to be precluded must be the same as that involved in the prior action, 2) the issue must have been actually litigated, 3) the determination of the issue must have been essential to the final judgment, and 4) the party against whom estoppel is invoked must be fully represented in the prior action. People Who Care v. Rockford Bd. of Educ., 68 F.3d 172, 178 (7th Cir.1995); La Preferida, Inc. v. Cerveceria Modelo, S.A., 914 F.2d 900, 905-06 (7th Cir.1990). Raytheon challenges only the first requirement— that the issue sought to be precluded in the present case is not the same as that decided in the bankruptcy court. (When Bell Boyd responded to the motion under Rule 12(b)(6) with a claim of collateral estoppel, Raytheon responded with arguments on the merits of that point. It did not assert that Bell Boyd needed to plead preclusion as an affirmative defense under Fed.R.Civ.P. 8(c), and thus we attach no weight to the procedural shortcut that occurred here. We do, however, construe the facts in the light most favorable to Raytheon, as is normal in reviewing a decision under Rule 12(b)(6).) In order to resolve this element of issue preclusion, we examine first what was before the bankruptcy court, and then what was before the district court. Raytheon filed two secured proofs of claim in the bankruptcy proceeding, each in the amount of $8,820,252. It asserted that its original mechanic’s lien secured these claims. Acme responded that" }, { "docid": "13958294", "title": "", "text": "preclusive effect in a subsequent civil proceeding and, if so, whether Plaintiffs guilty plea has preclusive effect in this § 1983 action. The Full Faith and Credit Act, 28 U.S.C. § 1738, requires a federal court to give the same preclusive effect to a state-court judgment that the judgment would be given in the courts of the state in which the judgment was rendered. Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (citing 28 U.S.C, § 1738); Dixon v. Richer, 922 F.2d 1456, 1459 (10th Cir.1991). Under Colorado law, collateral estoppel bars relitigation of an issue if (1) the issue sought to be precluded is identical to an issue “actually determined” in the prior proceeding; (2) the party against whom estoppel is asserted was a party to or in privity with a party to the prior proceeding;. (3) there was a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issues in the prior proceeding. Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo.2001). Although Sunny Acres Villa is a recent statement by the Supreme Court of Colorado of the four elements of collateral es-toppel, that court has previously articulated the first element of the analysis in a slightly different manner. Specifically, the court has articulated the first element to require that “[t]he issue precluded is identical to an issue actually litigated and necessarily adjudicated in the prior proceeding.” Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 84-85 (Colo.1999) (emphasis added). The court clarified that “actually litigated and necessarily adjudicated” is simply a way of defining the term “actually determined.” Id. at 85 n. 3 (stating that when an issue is properly raised, submitted for determination, and determined, “the issue is actually litigated”) (citing Restatement (Second) of Judgments § 27 cmt. d (1980)). Accordingly, the essential inquiry under the first element-is whether the issue sought to be precluded was “actually determined” in the prior proceeding.- Whether the elements of a" }, { "docid": "23600964", "title": "", "text": "estoppel when the state law standards as those required to prove nondischargeability of debt under the Bankruptcy Code. See Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981); Matter of Merrill, 594 F.2d 1064, 1067 (5th Cir.1979); Matter of Ross, 602 F.2d 604, 607-08 (3d Cir.1979); In re Shepherd, 56 B.R. 218, 219 (W.D.Va.1985); In re Bishop, 55 B.R. 687, 688-89 (Bankr.W.D.Ky.1985); In re Perrin, 55 B.R. 401, 402 (Bankr.D.N.D.1985); In re D’Annolfo, 54 B.R. 887, 888-89 (Bankr.D.Mass.1985). This Court has also held when a case is actually litigated on the merits, although the prior judgment cannot be given res judicata or claim preclusions effect, if all of the four elements of collateral estoppel or issue preclusions are present, and the non-bankruptcy court applies the same clear and convincing standard of proof, which the Bankruptcy Court must apply in the context of a nondischargeability proceeding, the findings of fact by that Court can have collateral estoppel application in any subsequent nondischargeability proceeding. See In re Tomsic, (Gellenbeck v. Tomsic, 104 B.R. 22, 29-40 (Bankr.N.D.Ind.1987).. The Seventh Circuit in the recent case of Klingman v. Levinson, 831 F.2d 1292, 1295 (7th Cir.1987), held that where a state court determines factual questions using the same standards as the bankruptcy court would use, collateral estoppel should be applied to promote judicial economy by encouraging the parties to present their strongest arguments, and thus if the requirements for applying collateral estoppel have been satisfied, then the doctrine should apply to bar relitigation of an issue determined by a state court. As noted by the Klingman Court, the four requirements for collateral estoppel are 1) the issue sought to be precluded must be the same issue as that involved in the prior action, 2) the issue must have been actually litigated, 3) the determination of the issue must have been essential to the final judgment, and 4) the party against whom estoppel is invoked must be fully represented in the prior action. Klingman v. Levinson, 831 F.2d at 1295, supra. A Federal Court must apply the same issue preclusive effect to state court judgments, which" }, { "docid": "11309476", "title": "", "text": "underlying facts.” When the requirements are met, “collateral estoppel should preclude relitigation of factual issues.”); Phillips v. Weissert (In re Phillips), 434 B.R. 475, 485 (6th Cir. BAP 2010) (“Where a state court determines factual questions using the same standards as the bankruptcy court would use, collateral estoppel should be applied to promote judicial economy by encouraging the parties to present their strongest arguments.”) (quoting Klingman v. Levinson, 831 F.2d 1292, 1295 (7th Cir.1987)); Vogel v. Kalita (In re Kalita), 202 B.R. 889, 894 (Bankr.W.D.Mich.1996) (citing Grogan, 498 U.S. at 284 n. 11, 111 S.Ct. at 658 n. 11). When applying collateral estoppel, the bankruptcy court must give a prior state court judgment the same preclusive effect that judgment would have in the state court, unless the Full Faith and Credit Statute, 28 U.S.C. § 1738, provides an exception. See Migra v. Warren City School District Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984) (“a federal court must give to a state court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered”); In re Calvert, 105 F.3d at 317. Because the state court judgment in this case was rendered by a Michigan state court, this court must give the judgment the same preclusive effect that any Michigan court would give the judgment. Under Michigan law, collateral es-toppel precludes re-litigation of an issue in a subsequent, different cause of action between the same parties where the prior proceeding resulted in a valid, final judgment and the issue was (1) actually litigated and (2) necessarily determined. People v. Gates, 434 Mich. 146, 452 N.W.2d 627, 630 (1990). In this adversary proceeding, there is no dispute that the state court litigation involved the same parties or that the state court entered a valid, final judgment. The only question is whether the issues regarding the Debtor’s asserted “willful and malicious” conduct were “actually litigated” and “necessarily determined” by the state court. 1. Was the State Court Judgment “Actually Litigated? ” The Debtor argues" }, { "docid": "3087510", "title": "", "text": "v. Dunston (In re Dunston), 146 B.R. 269, 277 (D.Colo.1992) (citations omitted). The potential choice of law issue as to whether a state or federal collateral estoppel standard should be applied does not arise here because the prior judgment was obtained in a federal court. See Katahn Assocs., Inc. v. Wien (In re Wien), 155 B.R. 479 (Bankr.N.D.Ill.1993) (prior federal district court judgment and bankruptcy court had to determine the preclusive effect of that judg ment). Because the previous judgment in the present case is a federal court judgment, federal standards, rather than state law standards for collateral estoppel, determine whether giving collateral estoppel effect to the Agreed Judgment Order is appropriate. See Zervas v. Nix (In re Nix), 92 B.R. 164, 167 (Bankr.N.D.Tex.1988) (citations omitted); Powell, 95 B.R. at 238. The Seventh Circuit has held that in order for collateral estoppel to be applied in a proceeding to determine the dischargeability of a debt, the following criteria must be met: (1) the issue sought to be precluded must be the same as the issue involved in the prior proceeding; (2) the issue must have been actually litigated in the prior proceeding; (3) determination of the issue must have been essential to the final judgment in the earlier proceeding; and (4) the party against whom estoppel is asserted must have been fully represented in the prior proceeding. Klingman, 831 F.2d at 1295; Meyer, 36 F.3d at 1379. It is undisputed that the first and fourth elements are met here and the second and third elements are at issue. Plaintiff argues that the doctrine of collateral estoppel precludes Defendant from defending this matter as a result of the Agreed Judgment Order entered in the prior adversary proceeding. Plaintiff asserts that the dischargeability issue was raised and presented to Judge Wedoff who entered the Agreed Judgment Order which was final, and from which no appeal was taken. Defendant notes the general rule that consent judgments, such as the Agreed Judgment Order, normally do not support the proper application of collateral estoppel because the underlying issues were neither actually litigated nor essential to" }, { "docid": "13615248", "title": "", "text": "(noting the superiority of class actions because of \"the inability of the poor or uninformed to enforce their rights, and the improbability that large numbers of class members would possess the initiative to litigate individually”). If the class were not certified, the class members would be unable to pursue this matter on their own. Thus, not certifying the class would effectively impair their rights. In summary, the Court finds that the plaintiffs satisfy all the requirements of Rule 7023. III. Collateral Estoppel On October 3, 1988, the District Court certified the class in the non-bankruptcy proceeding. On December 21, 1990, this Court certified the same class for the purpose of filing a class proof of claim. Thus, the Court may, as an alternative to the foregoing analysis, decide whether the doctrine of collateral estoppel precludes Debtor from relitigating the findings underlying the previous class certifications. The doctrine of collateral estoppel is designed to conserve judicial resources and to promote judicial economy Klingman v. Levinson, 831 F.2d 1292, 1295 (7th Cir.1987). In order to give a judgment collateral estoppel effect in a later proceeding, four requirements must be met: (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) the issue must have been actually litigated to final judgment; (3) the determination must have been essential to the final judgment; and, (4) the party against whom estoppel is invoked must have been fully represented in the prior action. Id. The first requirement is met here. Count I of the Class Plaintiffs’ Adversary complaint seeks a declaration of non-dis-chargeability under § 523(a)(2)(A) of the Bankruptcy Code. Thus, the issues of false pretense, false representation and fraud in a § 523(a)(2)(A) context are substantially the same as those issues in the context of the Class proof of claim, or the Class complaint under RICO and the Illinois Consumer Fraud and Deceptive Business Practices Act that went to judgment. One element required for non-discharge-ability under § 542(a)(2)(A) is that the creditor has actually relied upon debtor’s false representation. In re Kimzey, 761 F.2d at 423." }, { "docid": "5976728", "title": "", "text": "to Bankruptcy Court to hear and determine the issue of dischargeability of debt, the doctrine of collateral estoppel applies when the precise issue was litigated previously in a state court. The Sixth Circuit in Spilman v. Harley, 656 F.2d 224, 227 (1981) cogently states the reasoning for use of collateral estoppel in the discharge-ability case. Applying collateral estoppel is logically consistent with the Supreme Court's decision in Brown and the exclusive jurisdiction of the bankruptcy courts while at the same time encouraging judicial economy. The determination whether or not a certain debt is dischargeable is a legal conclusion based upon the facts in the case. The bankruptcy court has the exclusive jurisdiction to make that legal conclusion. It must apply the statute to the facts and decide to discharge or not. Therefore, res judicata does not apply to prevent litigation of every issue which might have been covered in the state court proceeding on the debt. However, that Congress intended the bankruptcy court to determine the final result — dis-chargeability or not — does not require the bankruptcy court to redetermine all the underlying facts. Case law has established a four part test to determine the preclusive effect of collateral estoppel in dischargeability proceedings. The elements of the test are enunciated in In re Ross, 602 F.2d 604 (3rd Cir. 1979) as follows: (1) The issue sought to be precluded must be the same as that involved in the prior action; (2) The issue must have been actually litigated; (3) It must have been determined by a valid and final judgment; and (4) The determination must have been essential to the final judgment. Collateral estoppel only treats as preclusive those issues actually and necessarily decided in the prior suit. In Spil-man, supra, the court held that the elements for collateral estoppel were not established because the prior trial record was incomplete and the court could not determine whether the issue of willful and malicious action was actually litigated and was necessary in the state court decision. Therefore, the court of appeals remanded the case to the bankruptcy court “to determine" }, { "docid": "10855403", "title": "", "text": "Plaintiffs timely appealed. II. We review de novo the district court’s dismissal of a complaint for failure to state a claim under 12(b)(6). United States ex rel. Rostholder v. Omnicare, Inc., 745 F.3d 694, 700 (4th Cir.2014). Federal law governs the res judicata effect of earlier bankruptcy proceedings. See Grausz v. Englander, 321 F.3d 467, 472 (4th Cir.2003) (“We look to res judicata principles developed in our own case law to determine whether an earlier federal judgment, including the judgment of a bankruptcy court, bars a claim asserted in a later action”). “Under res judicata principles, a prior judgment between the same parties can preclude subsequent litigation on those matters actually and necessarily resolved in the first adjudication.” In re Varat Enters., Inc., 81 F.3d 1310, 1314-15 (4th Cir.1996). As we have applied it, the doctrine of res judicata encompasses two concepts: claim preclusion, which bars later litigation of all claims that were actually adjudicated or that could have been adjudicated in an earlier action, and issue preclusion, which bars later litigation of legal and factual issues that were “actually and necessarily determined” in an earlier action. Id. at 1315 (internal citation omitted). Rather than attempting to draw a sharp distinction between these two aspects here, we conduct our analysis under the general res judicata framework, as has been our practice in bankruptcy cases. We have held that a prior bankruptcy judgment has res judicata effect on future litigation when the following three conditions are met: 1) [T]he prior judgment was final and on the merits, and rendered by a court of competent jurisdiction in accordance with the requirements of due process; 2) the parties are identical, or in privity, in the two actions; and, 3) the claims in the second matter are based upon the same cause of action involved in the earlier proceeding. Id. All three requirements are met here. The first requirement is easily satisfied because confirmation of a bankruptcy plan is a final judgment on the merits. See, e.g., id. (“[T]he [bankruptcy plan] confirmation order constitutes a final judgment on the merits with res judicata effect.”);" }, { "docid": "12886553", "title": "", "text": "Subject matter jurisdiction lies under 28 U.S.C. § 1334(b). Venue lies under 28 U.S.C. § 1409. This matter constitutes a core proceeding under 28 U.S.C. § 157(b)(2)(I). Limited Issue Preclusive Effect of Earlier State Court Default Judgment Bankruptcy judges ordinarily must make independent determinations as to whether particular debts should be excepted from discharge under § 523(a). Meyer v. Rigdon, 36 F.3d 1375, 1378 (7th Cir.1994). However, the doctrine of collateral estoppel fully applies to bankruptcy discharge exception proceedings. Id. at 1378-79 (citing Klingman v. Levinson, 831 F.2d 1292, 1294-95 (7th Cir.1987); Grogan v. Garner, 498 U.S. 279, 285 n. 11, 111 S.Ct. 654, 658 n. 11, 112 L.Ed.2d 755 (1991) (“[C]ollateral estoppel principles do indeed apply in discharge exception proceedings pursuant to § 523(a).”)). Thus, where a court of competent jurisdiction has previously ruled against a debtor upon specific issues of fact that independently comprise elements of a creditor’s nondis-chargeability claim, the debtor may not seek to relitigate those underlying facts in bankruptcy court. There is collateral estoppel from reconsidering a previously-litigated issue only if: (1) the issue sought to be precluded is the same as that resolved in the prior litigation; (2) the issue was “actually litigated” in the earlier action; (3) determination of the issue was essential to final judgment in the earlier proceeding; and (4) the party against whom estoppel is invoked was fully represented in the prior action. La Preferida, Inc. v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 906 (7th Cir.1990). As a matter of well-settled law, default judgments are not ordinarily given preclusive effect in subsequent court proceedings because no issue was “actually litigated” in the earlier proceeding. See Meyer, 36 F.3d at 1379; Matter of Cassidy, 892 F.2d 637, 640 n. 1 (7th Cir.), cert. denied, 498 U.S. 812, 111 S.Ct. 48, 112 L.Ed.2d 24 (1990). That is the case here. Thus, an independent determination must be made here as to whether these debts should be excepted from discharge under § 523(a)(2)(A), (4), and (6). See Meyer, 36 F.3d at 1378-79. The amount of debt due Plaintiff was determined by the" }, { "docid": "5976729", "title": "", "text": "require the bankruptcy court to redetermine all the underlying facts. Case law has established a four part test to determine the preclusive effect of collateral estoppel in dischargeability proceedings. The elements of the test are enunciated in In re Ross, 602 F.2d 604 (3rd Cir. 1979) as follows: (1) The issue sought to be precluded must be the same as that involved in the prior action; (2) The issue must have been actually litigated; (3) It must have been determined by a valid and final judgment; and (4) The determination must have been essential to the final judgment. Collateral estoppel only treats as preclusive those issues actually and necessarily decided in the prior suit. In Spil-man, supra, the court held that the elements for collateral estoppel were not established because the prior trial record was incomplete and the court could not determine whether the issue of willful and malicious action was actually litigated and was necessary in the state court decision. Therefore, the court of appeals remanded the case to the bankruptcy court “to determine by looking at the entire state court record if the issue of willful and malicious action on the part of appellee was actually litigated and was necessary to the state court decision.” 656 F.2d at 229. The entire certified transcript of the state court proceedings has been read by this court and it is quite clear from the instructions given to the jury that the issues of willfulness and maliciousness were considered and decided by the jury. The jury was instructed that to find an assault there must have been an “intent on the part of the Defendant or Defendants to inflict some physical injury no matter how slight upon the person of the Plaintiff.” (Tr. 622) The jury was also instructed that: exemplary or punitive damages may be awarded by the Jury only when the Jury finds that the assault which was the proximate result of the injuries was prompted by actual malice. Malice in fact or actual malice is defined to mean a feeling or personal hatred or ill will or revenge of" }, { "docid": "1223378", "title": "", "text": "applicable to nondischargeability proceedings in bankruptcy cases. Grogan v. Garner, 498 U.S. 279, 284 n. 11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (“[Collateral estoppel principles do indeed apply in discharge exception proceedings pursuant to § 523(a).”) Though bankruptcy courts have exclusive jurisdiction to determine dischargeability issues, this “does not require the bankruptcy court to redetermine all the underlying facts” of the case if they were previously determined in an earlier lawsuit. Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981). “[W]here all the requirements of collateral estoppel are met, collateral estoppel should preclude relitigation of factual issues.” Id. at 228. The application of issue preclusion in a nondischargeability action de pends on whether the prior state court judgment would be afforded preclusive effect under state law. The Spring Works, Inc. v. Sarff (In re Sarff), 242 B.R. 620, 624 (6th Cir. BAP 2000). In order to successfully assert collateral estoppel under Ohio law, a party must plead and prove the following elements: (1) the party against whom es-toppel is sought was a party or in privity with a party to the prior action; (2) there was a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; (3) the issue must have been admitted or actually tried and decided and must be necessary to the final judgment; and (4) the issue must have been identical to the issue involved in the prior suit. Id. (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)). First, the party against whom issue preclusion is being asserted here, Defendant Naomi E. Powers, was defendant in the prior litigation, thereby satisfying the privity requirement. Second, the State Court’s Judgment followed a bench trial at which both parties were present and represented by counsel (Judgment at 1), which satisfies the second requirement that parties had full and fair opportunity to litigate. Third, the State Court issued specific findings regarding Defendant’s actions and her underlying motivations, indicating that those facts were either admitted or tried before the Court; neither" }, { "docid": "3110405", "title": "", "text": "(1980). The Supreme Court has held that issue preclusion principles are applicable to dischargeability proceedings in bankruptcy cases. Grogan v. Garner, 498 U.S. 279, 284 n.11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (“[C]ollateral estoppel principles do indeed apply in discharge exception proceedings pursuant to § 523(a).”). Though bankruptcy courts have exclusive jurisdiction to determine dischargeability issues, this “does not require the bankruptcy court to redetermine all the underlying facts” of the case if they were previously determined in an earlier lawsuit. Spilman v. Harley, 656 F.2d 224, 227 (6th Cir. 1981). “[Wjhere all the requirements of collateral estoppel are met, collateral estoppel should preclude relitigation of factual issues.” Id. at 228. The application of issue preclusion in a dischargeability action depends on whether the prior state court judgment would be afforded preclusive effect under state law. Ed Schory & Sons, Inc. v. Francis (In re Francis), 226 B.R. 385, 388 (6th Cir. B.A.P. 1998). In order to successfully assert collateral estoppel under Ohio law, a party must plead and prove the following elements: (1) the party against whom estoppel is sought was a party or in privity with a party to the prior action; (2) there was a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; (3) the issue must have been admitted or actually tried and decided and must be necessary to the final judgment; and (4) the issue must have been identical to the issue involved in the prior suit. Id. (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)). Plaintiffs contend that they are entitled to summary judgment because the facts necessary to a determination of nondis-chargeability under 11 U.S.C. § 523(a)(2)(A), (6), and/or (19) were established in the State Court Proceeding between Plaintiffs and Defendants, so issue preclusion bars Defendants from relitigat-ing the relevant issues here. As an initial matter, the Court concludes that two of the four elements articulated in Sarff have been satisfied as to each of the three causes of action. First, the" }, { "docid": "10306376", "title": "", "text": "based on the same cause of action.”). The application of res judicata to dischargeability actions is improper as such claims can arise only in the context of a bankruptcy proceeding. They involve determining, for example, whether a debt was incurred by fraud (section 523(a)(2)), by defalcation by a fiduciary (section 523(a)(4)), whether the debt was listed or scheduled (section 523(a)(3)), or whether the debt is a domestic support obligation (section 523(a)(5)). Because the issues in dischargeability actions extend beyond liability, claim preclusion under res judicata does not apply. As noted by the Seventh Circuit in Matter of Bulic, 997 F.2d 299, 305 n. 7 (7th Cir.1993), however, “the narrower doctrine of collateral estoppel ... does apply to bankruptcy cases.” In ruling on the Plaintiffs Motion for Summary Judgment and the Defendant’s Cross-Motion for Summary Judgment, this Court applied the principle of collateral estoppel, or issue preclusion, in ruling that John C. Jahrling was Stanley Cora’s attorney at the April 10, 2003 closing. See April 15, 2014 Memorandum Opinion, Adv. Pro. 13-688, dkt. no. 69, p. 5. Collateral estoppel “bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim.” Dexia Credit Local v. Rogan, 629 F.3d 612, 628 (7th Cir.2010). Because the ruling sought to be given preclusive effect was issued by an Illinois state court, Illinois collateral estoppel law controls. Brokaw v. Weaver, 305 F.3d 660, 669 (7th Cir.2002). Under Illinois law, the following have to be shown for collateral estoppel to apply: (1) the issue decided in the prior proceeding must be identical to the issue in the current action; (2) the party against whom the estoppel is asserted must have been a party or in privity with a party to the prior case; (3) there must have been a final judgment on the merits in the prior action. Colemichael Invs., LLC v. Burke (In re Burke), 398 B.R. 608, 622 (Bankr.N.D.Ill.2008). “In order for a previous judgment to be conclusive, it must" }, { "docid": "14635294", "title": "", "text": "than a statement respecting the debtor’s or an insider’s financial condition. 11 U.S.C. § 523(a)(2)(A) (Supp.1984). In nondis-chargeability proceedings, in order for the court to give collateral estoppel effect to findings by a state court, “all the relevant issues in the subsequent proceeding must have been actually litigated and determined in the prior proceeding.” In re Longo, 37 B.R. 900, 901 (Bankr.D.Mass.1984). “Collateral estoppel or “issue preclusion” prevents parties from relitigating only those issues actually and necessarily litigated in a prior proceeding.” J. Ferriell, The Preclusive Effect of State Court Decisions in Bankruptcy, 58 Am.Bankr.L.J. 349, 350 (1984) (hereinafter referred to as “Ferried”). Where a creditor has obtained a judgment against a debtor in a lawsuit prior to the debtor’s bankruptcy, the bankruptcy court, faced with the creditor’s action for a nondischargeability under § 523 of the Bankruptcy Code, must determine what effect should be given to the prior litigation. Although the doctrine of res judicata has no place in nondischargeability proceedings because of the bankruptcy courts exclusive jurisdiction to determine nondischargeability, Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), the principles of collateral estoppel can apply in nondischargeability cases so that issues that have been fully litigated in a prior state proceeding need not be relitigated. Id. at 140 n. 10, 99 S.Ct. at 2213 n. 10. An issue previously determined may not be relitigated where the following elements are satisfied: the issue sought to be precluded must be the same as that in the prior action; the issue must have been actually litigated; the issue must have been determined by a valid and final judgment; and, the determination must have been essential to the judgment. In re Ross, 602 F.2d 604, 608 (3d Cir.1979). Whether the standards employed in the state action were the same as those to be utilized under § 523 requires an inquiry into state law. In re Greenblatt, 8 B.R. 994 (Bankr.E.D.N.Y.1981). “In many cases, differences between state law upon which the prior judgment was based and the federal standards for nondischargeability will make it improper to give the" }, { "docid": "16507150", "title": "", "text": "to determine whether Marlene had violated this Court’s 1969 enforcement order, the Special Master had to find whether the discharge of Rushing was ■ an unfair labor practice. Had he found that it was, this would have been dispositive of the question of contempt. Thus, the question of unfair labor practices was properly and “distinctly put in issue,” Paine & Williams Co. v. Baldwin Rubber Co., 113 F.2d 840, 843-44 (6th Cir.1940); Southern Pacific R. Co. v. United States, 168 U.S. 1, 48-49, 18 S.Ct. 18, 27, 42 L.Ed. 355 (1897), and its determination was essential to the prior judgment for the purpose of applying collateral estoppel. As stated in NLRB v. Brown & Root, Inc., 203 F.2d 139, 146 (8th Cir.1953): The general rule is that “Any right, fact or matter in issue and directly adjudicated, or necessarily involved in the determination of an action before a competent court in which a judgment or decree has been rendered upon the merits, is conclusively settled by the judgment therein and cannot again be litigated between the same parties and their privies, whether the claim, demand, purpose or subject-matter of the two suits is the same or not.” [citations omitted] Authority for this position is found in Bronson v. Board of Education, Etc., 525 F.2d 344, 349 (6th Cir.1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1665, 48 L.Ed.2d 175 (1976), where this Court applied issue preclusion to bar relitigation of the questions of segregative intent and constitutional infirmities. Determination of those issues was considered critical to a prior decision of the Court and, therefore, inquiry intb them was foreclosed. In the alternative, the Board contends that the prior contempt proceeding did not preclude relitigation of the issue of unfair labor practices because the party against whom preclusion was sought (i.e., NLRB) had a significantly heavier burden of persuasion with respect to the contested issue in the initial action (i.e., clear and convincing evidence), than it had in the subsequent action (i.e., preponderance of the evidence). There is case law both supporting and opposing the Board’s proposition as framed. At a" } ]

[ { "docid": "9327350", "title": "", "text": "defendant Law. Upon motion of plaintiff, the bill was dismissed without prejudice as to defendants Smith and Russell; leaving Law sole defendant upon this appeal. The main question in the case is: Was the restriction upon alienation which is contained in the deed to Amanda Perry valid? It is admitted upon the record that the land originally allotted to Amanda Perry was restricted as to alienation; that such restrictions were removable by the Secretary of the Interior; that application was made by Amanda Perry to the Secretary of the Interior for the removal of restrictions upon the land allotted to her, and that the same were removed conditionally; that it was part of the conditions that the Secretary of the Interior reserved the right to dispose of the proceeds of the sale of said lands; that he did dispose of the proceeds by investing the same in other land; that this new land was purchased by the United States, through its lawful representatives, for Amanda Perry; that the deed to said land containing the restrictions above mentioned was procured and approved by the United States through its representative. It is claimed, however, by the appellee that there is no authority in law for the imposing of such restriction upon alienation upon the land newly purchased. The argument of counsel for the appellee seems to be that, while the Secretary of the Interior might lawfully impose the condition that he should direct the disposition of the proceeds of the sale of the allotment, yet when he had done this by directing an investment in the new land his power ceased. The authority under which the Secretary of the Interior acted is contained in section 1 of the act of May 27, 1908 (35 Stat. 312, c. 199). It reads, so far as here material, as follows: “All homesteads of said allottees enrolled as mixed-blood Indians having half or more than half Indian blood, including minors of such degrees of blood, and all allotted lands of enrolled full-bloods, and enrolled mixed-bloods of three-quarters or more Indian blood, including minors of such degrees" } ]

[ { "docid": "5664132", "title": "", "text": "J. C. Petty and all subsequent conveyances be cancelled and title quieted in the Indian heirs for their respective interests. Judgment was entered quieting title in the Indian heirs, and Grisso appealed. The first question presented is whether the restrictions against alienation of the land expired April 26, 1931. If so, the deeds from Barnett Simpson and Pearl Fisher to Petty were valid without approval, since they were executed after that date. Section 19 of the Act of April 26, 1906, 34 Stat. 137, 144, provides that no Choctaw, Chickasaw, Cherokee, or Seminole Indian of the full-blood shall have power to alienate in any manner any of the lands allotted to him for a period of twenty-five years from and after the passage and approval of the act; and section 22 provides that the adult heirs of a deceased Indian of any of the Five Civilized Tribes whose selection has been made, or to whom a deed or patent has been issued for his share of the land of the tribe, may sell the lands inherited from the decedent, but that all conveyances made under the provision by heirs of the full-blood shall be subject to the approval of the Secretary of the Interior, under such rules and regulations as he may prescribe. Section 1 of the Act of May 27, 1908, 35 Stat. 312, provides in part: “All lands, including homesteads, of said allottees enrolled as intermarried whites, as freedmen, and as mixed-blood Indians having less than half Indian blood including minors shall be free from all restrictions. All lands, except homesteads, of said al-lottees enrolled as mixed-blood Indians having half or more than half and less than three-quarters Indian blood shall be free from all restrictions. All homesteads of said allottees enrolled as mixed-blood Indians having half or more than half Indian blood, including minors of such degrees of blood, and all allotted lands of enrolled full-bloods, and enrolled mixed-bloods of three-quarters or more Indian blood, including minors of such degrees of blood, shall not be subject to alienation, contract to sell, power of attorney, or any other" }, { "docid": "22777099", "title": "", "text": "to removal of restriction, where patents thereafter issue, shall not be deemed or held invalid solely because said conveyances were made prior to issuance and recording or delivery of patent or deed; but this shall not be held or construed as affecting the validity or invalidity of any such conveyance, except as hereinabove provided; and every deed executed before, or for the making of which a contract or agreement was entered into before thé removal of restrictions, be and the same is hereby, declared void: Provided further, That all lands upon which restrictions are removed shall be subject to taxation, and the other lands shall bé exempt from taxation as long as the title remains in the original allottee.” The power of Congress thus to extend the restriction upon alienation was sustained by this court in Tiger v. Western Investment Co., 221 U. S. 286. There the question related to a conveyance of inherited lands, made by a Creek Indian, of the full-blood, without the approval of the Secretary of the Interior as required by § 22 of the act of 1906. The conveyance had been executed after the expiration of the five-year limitation upon alienation, prescribed by the supplemental agreement with the Creek Nation (act of June 30, 1902, c. 1323, § 16; 32 Stat. 503); but meanwhile, and during the continuance of the original restriction, the act pf 1906 had been enacted. It was held that the restriction of the later statute was valid. The reasoning of this decision is conclusive as to the validity of the extension by § 19 of the act of 1906 of the period of inalienability of lands allotted, as in this case, to full-blood Cherokees. And the same principle governs the restrictions provided by the act of May 27, 1908, c. 199, 35 Stat. 312. It is not open to dispute that, upon the facts alleged, all the conveyances specified in the bill in this suit were executed in violation of restrictions lawfully imposed. The principal question now presented is with respect to the capacity of the United States to sue in" }, { "docid": "5693938", "title": "", "text": "of the Five Civilized Tribes under the provisions of section 3 of the Act of April 12, 1926, 44 Stat. 239. A judgment of partition was entered, pursuant thereto the land was sold by the sheriff, and D. B. Hellard became the purchaser. Hellard later instituted in the state court this action against the Indian heirs to quiet his title based upon the sheriff’s deed. The Indians disclaimed. Notice was served on the Superintendent of the Five Civilized Tribes, the United States caused the action to be removed to the United States court and later intervened, alleging that the proceedings in partition were void because the-United States was not a party to the action, and praying that the sheriff’s deed be-cancelled and the title of the Indian heirs, quieted. The trial court entered judgment quieting title in Hellard, and the United States appealed. Section 19 of the Act of April 26, 1906, 34 Stat. 137, provides that no full-blood Indian of the Choctaw, Chicasaw, Cherokee, Creek, or Seminole Tribes shall have power to sell, alienate, or dispose of any of the land allotted to him for a period of twenty-five years from and after the passage of the act, unless such restriction shall pri- or to the expiration of that period be removed by Act of Congress; and section 22 provides that the adult heirs of any deceased Indian of the Five Civilized Tribes whose selection has been made, or to whom a deed or patest has been issued for his share of the land of the tribe to which he belongs, may sell and convey the land inherited from such decedent, but that all conveyances made under the provision by heirs who are full-blood Indians shall be subject to the approval of the Secretary of the Interior, under such rules and regulations as may be prescribed by him. Section 1 of the Act of May 27, 1908, 35 Stat. 312, provides among other things that all allotted lands of enrolled, full-blood members of the Five Civilized Tribes shall not be subject to alienation prior to April 26, 1931, except" }, { "docid": "16828151", "title": "", "text": "favor of the Indians. A construction that the interest acquired through inheritance by Nelis Cooper remained subject to the qualified restrictions of § 9 will further the manifest policy of Congress to protect full-blood Indian heirs of the Five Civilized Tribes against loss of their lands, a policy manifest by the Act of January 27, 1933, 47 Stat. 777, 779, which imposed qualified restrictions generally with respect to interests in land of such full-blood Indian heirs. See Murray v. Ned, 10 Cir., 135 F.2d 407, certiorari denied November 8, 1943, 64 S.Ct. 188. Finally, reference to the legislative history of the Act of May 10, 1928, confirms the construction we have adopted. The Committee on Indian Affairs of the United States Senate adopted as a part of its report a letter by the Secretary of the Interior who drafted and sponsored that Act. In his letter submitting the proposed bill to Congress, the Secretary, in part, stated: “ * * * it appearing that in the cases of the full-blood and other restricted Indians of the Five Civilized Tribes there is need of the continued protection of the Government in relation to their restricted Indian property and income therefrom, it is believed that, . . . the restrictions on their allotted and other restricted lands should be extended for an additional period of 25 years commencing on April 26, 1931, and legislation for that purpose should be enacted.” (Italics ours.) (S.Rep. 982, 70th Cong., 1st Sess., Cong.Doc.Series 8831.) We accordingly conclude that the Nelis Cooper deed of May 8, 1928, lacking the requisite approval, was void. The judgment is affirmed. Holmes v. United States, 10 Cir., 53 F.2d 960, 963. Holmes v. United States, 10 Cir., 53 F.2d 960, 961; Parker v. Richards, 250 U.S. 235, 238, 239, 39 S.Ct. 442, 63 L.Ed. 954; Harris v. Bell, 254 U.S. 103, 41 S.Ct. 49, 65 L.Ed. 159; United States v. Gypsy Oil Co., 8 Cir., 10 F.2d 487, 489, 490. Sunderland v. United States, 266 U.S. 226, 234, 235, 45 S.Ct. 64, 69 L.Ed. 259; Mott v. United States, 283 U.S." }, { "docid": "11955418", "title": "", "text": "VAN ORSDEL, Associate Justice. This appeal is by the Secretary of the Interior from a judgment of the Supreme Court of the District of Columbia in favor of the plaintiff below, directing the Secretary to turn over all the moneys, funds, and property belonging- to plaintiff now in his possession. It appears that plaintiff is a son of Alice Perry, a half-blood member of the Chickasaw Indians, one of the Five Civilized Tribes of Oklahoma. She was duly enrolled and allotted land on which an oil lease was placed. Alice Perry died on June 22, 1923. At the date of her death there had accrued, in the hands of the Secretary of the Interior, approximately $60,000 from oil and gas royalties which descended to plaintiff. The principal distinction between this case and that of Nancy King et al. v. Ickes, Secretary of the Interior, 64 F.(2d) 979, this day decided by this court, is that in the King Case the heir was a full-blood Indian. There the restrictions on alienation of the land were removed by the approval of a con- veyanee executed by tbe heir prior to April 26,1931, the date of the expiration of the restricted period fixed by section 9 of the Act of Congress of May 27, 1908, 35 Stat. 312, 315. Here no conveyance is involved and nothing intervened to terminate the restrictions on the alienation of the inherited land until the expiration of the twenty-five year period, April 26, 1931. Wo see no distinction in point of law between this and the King Case. Under the Act of Congress of January 27, 1933, “all funds and other securities now held by or which may hereafter come under the supervision of the Secretary of the Interior, belonging to and only so long as belonging to Indians of the Five Civilized Tribes in Oklahoma of one-half or more Indian blood, enrolled or unenrolled, are hereby declared to be restricted and shall remain subject to the jurisdiction of said Secretary until April 26, 1956.” The funds here in question, belonging to an Indian of the Five Civilized" }, { "docid": "23467380", "title": "", "text": "at that time, subject to all State taxes? 2. Is this tax a forbidden tax upon a federal instrumentality? In Sunderland v. United States, 266 U. S. 226, a restriction against alienation like that in the present case imposed by the Secretary on lands purchased for a Creek Indian, as were Tiger’s, under § 1, c. 199 of the Act of May 27, 1908, 35 Stat. 312, was held to be a valid exercise of the power of the Secretary to remove restrictions from the land of full blood Indians “ wholly or in part, under such rules and regulations concerning terms of sale and disposal of proceeds for the benefit of the respective Indians as he may prescribe.” In an earlier case, McCurdy v. United States, 246 U. S. 263, this Court had held that a similar restriction upon lands similarly purchased for an Osage Indian could not have the effect contended for there, and here, of exempting the land from state taxation for the reason that under the applicable provisions of a different statute, § 5, c. 83, Act of April 18, 1912, 37 Stat. 86, the Secretary was without authority to imposé the restriction. And, in United States v. Ransom, 263 U. S. 691, affirming 284 Fed. 108, it was held, on the authority of McCurdy v. United States, supra, that the state had power to tax lands purchased for a Creek Indian citizen with restrictions against alienation imposed by the Secretary under § 1 of the Act of May 27, 1908, which was the statute later passed on in Sunderland v. United States, supra. The construction to be placed on these decisions is that the lands now in question, and hence the interest of the lessee in them, are not such instrumentalities of the government as will be declared immune from taxation in the absence of an express exemption by Congress and that the mere act of the Secretary in imposing the restriction is not the exercise of any power which may reside in Congress to exempt them from taxation. What governmental instrumentalities will be held" }, { "docid": "8746867", "title": "", "text": "trust by the United States for a “period of twenty-five years ... for the sole use and benefit of the Indian to whom such allotment” was made. 25 U.S.C. § 348. The General Allotment Act further provided that, at the end of that twenty-five year period, the United States would “convey the same by patent to said' Indian ... in fee, discharged of said trust and free of all charge or incumbrance whatsoever.” Id. The 1908 Allotment Act, 35 Stat. 312, “released particular Indian owners from the[ ] restrictions [imposed by the General Allotment Act] ahead of schedule, vesting in them full fee ownership.” Plains Commerce, 554 U.S. at 331, 128 S.Ct. 2709. But it also provided, in relevant part, that parcels of land allotted to tribal members with at least 3/4 Indian blood could not be alienated until April 26, 1931, unless the restrictions were removed by the Secretary of the Interior. See Act of May 27, 1908, ch. 199, § 1, 35 Stat. 312. In 1928, Congress extended for an additional twenty-five years, or until April 26, 1956, the restrictions on alienation imposed by the 1908 Act. See Act of May 10, 1928, ch. 517, § 1, 45 Stat. 495. On July 2, 1945, Congress passed a law (the 1945 Act) providing, in pertinent part: That no conveyance made by an Indian of the Five Civilized Tribes on or after April 26, 1931, and prior to the date of enactment of this Act, of lands purchased, prior to April 26, 1931, for the use and benefit of such Indian with funds derived from the sale of, or as income from, restricted allotted lands and conveyed to him by deed containing restrictions on alienation without the consent and approval of the Secretary of the Interior prior to April 26,1931, shall be invalid because such conveyance was made without the consent and approval of the Secretary of the Interior: Provided, That all such conveyances made after the date of the enactment of this Act must have the approval of the Secretary of the Interior. Act of July 2, 1945, ch." }, { "docid": "11934323", "title": "", "text": "of 1908. United States v. Gypsy Oil Co., supra. It has been held that the Secretary of the Interior, since he has power to withhold his approval of the investment of trust funds in his hands, may exercise the lesser authority and allow the investment upon condition that the property into which the proceeds are converted shall be impressed with a like control. See Sunder-land v. United States, 266 U.S. 226, 234, 235, 45 S.Ct. 64, 69 L.Ed. 259. It has also been held that a county court having jurisdiction over the guardianship of Indian minors could require that such a restrictive clause be inserted in a deed to lands purchased with funds of an Indian minor derived from a sale of restricted lands. See United States v. Brown, 8 Cir., 8 F.2d 564. We are of the opinion that the situation here presented is analogous and that the county court, having power to withhold approval, may grant that approval upon conditions imposed for the protection of the full-blood Indian heir. Furthermore, we do not think that the Congress, in continuing modified restrictions of lands passing to full-blood Indian heirs or devisees, intended, even though it would be improvident for the Indian heir or devisee to sell his land for cash, to prevent him from making desirable exchanges thereof for other lands. Situations frequently arise where such an exchange is both desirable and practical. An Indian heir might acquire separate tracts of land. It might be desirable to have his land in one body and to effect that through exchange. The result is to permit a desirable exchange and continue the necessary restrictions against the land received in exchange for the protection of the Indian heir. The judgment is reversed and the cause remanded with instructions to enter a decree cancelling the deed from Caroline to Goldfeder and quieting the title in Caroline." }, { "docid": "11934322", "title": "", "text": "of § 9 of the Act of May 27, 1908, 35 Stat. 312, 315, as amended by the Act of April 12, 1926, 44 Stat. 239, and Caroline was without power to make a valid conveyance of her interest in the allotment without the approval of the county court having jurisdiction of the estate of Betsy. The county court having power to withhold approval of the conveyance from Caroline to Harris, the question arises as to whether or not it could impose as a condition to such approval the inclusion of the restrictive clause in the deed from Harris to Caroline. In approving deeds to full-blood Indian heirs of inherited lands, the county court acts as a federal instrumentality. See United States v. Gypsy Oil Co., 8 Cir., 10 F.2d 487. The death of the original allottee does not wholly remove restrictions, but qualified restrictions are continued as to full-blood Indian heirs by virtue of the provisions of § 9, supra, and as to minor heirs by the provisions of § 6 of the Act of 1908. United States v. Gypsy Oil Co., supra. It has been held that the Secretary of the Interior, since he has power to withhold his approval of the investment of trust funds in his hands, may exercise the lesser authority and allow the investment upon condition that the property into which the proceeds are converted shall be impressed with a like control. See Sunder-land v. United States, 266 U.S. 226, 234, 235, 45 S.Ct. 64, 69 L.Ed. 259. It has also been held that a county court having jurisdiction over the guardianship of Indian minors could require that such a restrictive clause be inserted in a deed to lands purchased with funds of an Indian minor derived from a sale of restricted lands. See United States v. Brown, 8 Cir., 8 F.2d 564. We are of the opinion that the situation here presented is analogous and that the county court, having power to withhold approval, may grant that approval upon conditions imposed for the protection of the full-blood Indian heir. Furthermore, we do not" }, { "docid": "12768353", "title": "", "text": "the Superintendent ■of the Five Civilized Tribes, notice of the pendency of the suit pursuant to Section 3 •of the Act of April 12, 1926, 44 Stat. 240. The United States brought this suit in its own behalf and behalf of Mahaley and George, minor full-blood unenrolled Creek Indians, against Katie, John R. Roube-deaux, and Mrs. Sam Naifeh, for the cancellation of the deed from Mahaley to Katie, the deed from Katie to Mrs. Sam Naifeh, and the decree rendered in favor of Katie in cause No. 21,136. The Act of May 27, 1908, 35 Stat. 312, in part reads: “That * * * the status of the lands allotted heretofore or hereafter to allottees of the Five Civilized Tribes shall, as regards restrictions on alienation or in-cumbrance, be as follows: * * * All allotted lands of enrolled full-bloods, * * * shall not be subject to alienation * * * or any other incumbrance prior to April twenty-sixth, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe. * * * “Sec. 2. * * * Provided, That leases of restricted lands for oil, gas or other mining purposes, * * * may be made, with the approval of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not otherwise * * *.” Section 1 of the Act of May 10, 1928, 45 Stat.-495, in part reads as follows: “That the restrictions against the alienation, lease, mortgage, or other encumbrance of the lands allotted to members of the Five Civilized Tribes in Oklahoma, enrolled as of one-half or more Indian blood, be, and they are hereby, extended for an additional period of twenty-five years commencing on April 26, 1931: Provided, That the Secretary of the Interior shall have the authority to remove the restrictions, upon the applications of the Indian owners of the land, and may" }, { "docid": "21508925", "title": "", "text": "A.) 284 F. 103, and United States v. Ransom (C. C. A.) 284 F. 108. While this precise situation, involving the identical relationship between the parties, has not been before the courts of last resort, nevertheless the principles announced by the Supreme Court and the Circuit Courts of Appeals in many decided cases furnish us dependable guidance. The act of Congress under which these lands were restricted is that of M.ay 27, 1908. 35 Stat. 312, e. 199. Under authority conferred by that act to make rules and regulations, the Secretary of the Interior, among others, promulgated the following: “20. In any case where lands are purchased for the use and benefit of any citizen of the Five Civilized Tribes of the restricted class, payment for which is made from proceeds arising from the sale of restricted allotted land, or other moneys held under the control of the Department of the Interior, the superintendent for the Five Civilized Tribes shall cause conveyance of such lands, to be made on form of conveyance, containing an habendum clause against alienation or incumbrance until April 26, 1931, as follows: ‘To have and to hold said described premises, unto the said grantee,-heirs and assigns, forever, free and clear and discharged of all former grants, charges, taxes, judgments, mortgages, and other liens and incumbrances of whatsoever nature, subject to the condition that no lease, deed, mortgage, power of attorney, contract to sell, or. other instrument affecting the land herein described or the title thereto, executed during the lifetime of said grantee at any time prior to April 26, 1931, shall be of any force and effect or capable of confirmation or ratification, unless made with the consent of and approved by the Secretary of the Interior.’ ” That regulation has received confirmation and approval in Sunderland v. United States (C. C. A. 8th Circuit) 287 F. 468, affirmed under the same title, 266 U. S. 226, 45 S. Ct. 64, 69 L. Ed. 259. In the cases just cited the lands allotted to the Indian, and under restrictions as to alienation, were sold; the proceeds" }, { "docid": "15199764", "title": "", "text": "as long as held by such restricted Indians, but not longer than April 26, 1956, unless the restrictions are removed in the meantime in the manner provided by law: Provided further, That such restricted and tax-exempt land held by anyone, acquired as herein provided, shall not exceed one hundred and sixty acres: And provided further, That all minerals including oil and gas, produced from said land so acquired shall be subject to all State and Federal taxes as provided in section 3 of the Act approved May 10, 1928 (45 Stat. L. 495).” See King v. Ickes, 62 App.D.C. 83, 64 F.(2d) 979; Holmes v. United States (C.C.A.) 53 F.(2d) 960; Kiker v. United States (C.C.A.) 63 F.(2d) 957. The first proviso of Act of May 27, 1908, covered only interests of full-blood Indian heirs acquired by descent and not by devise. United States v. Fooshee et al. (C.C.A.8) 225 F. 521. By section 1 of Act approved April 12, 1926 (44 Stat. 239), amending section 9 of Act of May 27, 1908, 35 Stat. 312, 315) it is provided: “That hereafter no conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Act acquired by inheritance or devise from an allottee of such lands shall be valid unless approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee or testator.” (Italics mine.) Congress thus extended and made more comprehensive said act so as to protect the fiill-blood Indian in land acquired not only by inheritance but also by devise. In some instances through designing manipulation the full-blood allottee was induced by will to devise his allotment to his full-blood children or next of kin and to secure its approval by the proper federal agency and then after the death of such testator or testatrix and the' probating of the will restrictions thereon having ceased as to such inherited land, opportunity for its dissipation was afforded. By this provision such practice was circumvented and supervision of the government through its federal agency" }, { "docid": "12768355", "title": "", "text": "remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe.” The trial court held that the Act of May 10, 1928, is limited in its application to “lands allotted to members of the Five Civilized Tribes,” enrolled as of one-half or more Indian blood,.and did not effect an extension of restrictions in deeds of lands to such members purchased with restricted funds. (Italics ours.) The Act of May 27, 1908, 35 Stat. 312, conferred upon the Secretary of the Interior the power to “remove such restrictions * * * under such rules and regulations concerning terms of sale and' disposal of the proceeds for the benefit of the respective Indians as he may prescribe.” Pursuant thereto the Secretary by rule prescribed that “where lands are purchased for the use and benefit of any citizen of the Five Civilized Tribes of the restricted class, payment for which is made from .proceeds arising from the sale of restricted allotted land, *, * * the superintendent * * * shall cause conveyance of such lands, to be made on form of conveyance containing an habendum clause against alienation or incumbrance until April 26, 1931.” The rule further prescribed the form of the habendum clause substantially in the tenor of the habendum clause in the deeds made to Katie on March 20, 1924, and October 10, 1925. The power of the Secretary of the Interior to make the regulation was upheld in Sunderland v. United States, 266 U.S. 226, 234, 235, 45 S.Ct. 64, 69 L.Ed. 259. See, also, Mott v. United States, 283 U.S. 747, 751, 51 S.Ct. 642, 75 L.Ed. 1385. In the Sunderland case the court said: “Since the allotted lands could not be sold or encumbered without his consent, and since the proceeds of any sale thereof were subject to his control and could only be disposed of with his approval and under such rules as he might prescribe for the ■ benefit of the respective Indians, the" }, { "docid": "11973563", "title": "", "text": "VAN ORSDEL, Associate Justice. This appeal is from a final decree dismissing a bill for injunction to restrain the Secretary of the Interior from exercising authority or control over certain accumulated rents and royalties derived from a certain oil lease, inherited by appellant from a full-blood Indian allottee, in the state of Oklahoma, and for a mandatory order requiring the Secretary to release and turn over the funds to plaintiff or her guardian. It appears that prior to 1919 one Pottey, a full-blood Seminole Indian, roll No. 1447, received as his homestead allotment, under the Aet of May 27, 1908, 35 Stat. 312, 40 acres of land in Seminole county, Okl., which was duly patented to him. On June 18, 1923, with the consent and approval of the Secretary of the Interior, Pottey executed an oil and gas lease to the Creek Capital Oil Company for a term of ten years from November 25, 1919; or as much longer thereafter as oil and gas were found in paying quantities. Royalties accrued thereunder in the hands of the Secretary of the Interior to the approximate amount of $75,000. Pottey died December 1, 1926, intestate, leaving, as his heirs and next of kin, Nancy King, widow, Eliza Wolf, horn prior to March 4, 1906, a daughter of a former wife, since deceased, and David Stamp; born after March 4, 1906, a son of the said former wife. Upon the death of Pottey, the land did not descend to his heirs, but was subject to a proviso of section 9 of the act of Congress of April 12, 1926, 44 Stat. 239, as follows: “The death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allot-tee’s land: Provided, That hereafter no conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Aet acquired by inheritance or deviso from an allottee of such lands shall he valid unless approved by the county court having jurisdiction of the settlement of the estate of the" }, { "docid": "16828147", "title": "", "text": "1 of this Act acquired by inheritance or devise from an allottee of such lands shall be valid unless approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee or testator: * * *” Section 9 contained a second proviso which continued the , restrictions imposed by § 1 of the Act with respect to homesteads of deceased allottees, where such allottees left issue surviving, born after March 4, 1906, during the life or lives of such issue, but not longer than April 26, 1931. The first proviso of § 9, supra, continued qualified restrictions as to full-blood Indian heirs and devisees. Section 1 of the Act of May 10, 1928, 45 Stat. 495, extended the restrictions against alienation of the lands allotted to members of the Five Civilized Tribes of one-half or more Indian blood for an additional period of 25 years from April 26, 1931. Section 2 of such Act extended the provisions of § 9 of the Act of May 27, 1908, as amended by the Act of April 12, 1926, except the second proviso thereof, for a period of 25 years from April 26, 1931. It repealed the second pro.viso effective April 26, 1931. The funds derived from the sale of the restricted allotment of Johnny Cooper while in the hands of the Secretary continued to be restricted and the land purchased with such funds continued to be restricted during the lifetime of Johnny Cooper. In Sunderland v. United States, 266 U.S. 226, 235, 45 S.Ct. 64, 65, 69 L.Ed. 259, the court said: “Since the allotted lands could not be sold or encumbered without his consent, and since the proceeds of any sale thereof were subject to his control and could only be disposed of with his approval and under such rules as he might prescribe for the benefit of the respective Indians, the extension of such control to the property in which the proceeds were directly invested would seem to be within the statute fairly construed.” In substance, there was a mere conversion of trust property. The" }, { "docid": "22455134", "title": "", "text": "trust or restricted funds of said Indian, are hereby declared to be instrumentalities of the Federal Government and shall be nontaxable until otherwise directed by Congress.” The 1937 Act amended § 2 of the 1936 Act to read as follows: “All homesteads, heretofore purchased out of the trust or restricted funds of individual Indians, are hereby declared to be instrumentalities of the Federal Government and shall be nontaxable until otherwise directed by Congress: Provided, That the title to such homesteads shall be held subject to restrictions against alienation or encumbrance except with the approval of the Secretary of the Interior: And provided further, That the Indian owner or owners shall select, with ,the approval of the Secretary of the Interior, either the agricultural and grazing lands, not exceeding a total of one hundred and sixty .acres, or the village, town or city property, not exceeding in cost $5,000, to be designated as a homestead.” In Sunderland v. United States, 266 U. S. 226, it was held that the Secretary of the Interior had power to impose such a restriction against alienation or encumbrance with respect to lands purchased for Indians of the Five Civilized Tribes (of which the Creeks are one) with the proceeds from sales of their restricted allotted lands. We think it clear that he also has authority to impose such restrictions upon lands purchased with restricted funds from leases of restricted allotted lands (see Shaw v. Gibson-Zahniser Oil Corp., 276 U. S. 675, and United States v. Brown, 8 F. 2d 564 at 568), and to make those restrictions run with the lands in the hands of Indian grantees. Cf. Drummond v. United States, 34 F. 2d 755, 758-59; United States v. Goldfeder, 112 F. 2d 615. See Shaw v. Gibson-Zahniser Oil Corp., 276 U. S. 575. Under Oklahoma law, the taxable status of property in Oklahoma is fixed as of the assessment date, January 1, in each year, although taxes are levied as of July 1. See Board of Commissioners v. Central Baptist Church, 136 Okla. 99, 276 P. 726; In re Sinclair Prairie Oil Co.," }, { "docid": "15199763", "title": "", "text": "of January 27, 1933 (H. R. 8750), entitled “An Act Relative to restrictions applicable to Indians of the Five Civilized Tribes in Oklahoma,” provides: “That all funds and other' securities now held by or which may hereafter come under the supervision of the Secretary of the Interior, belonging to and only so long as belonging to Indians of the Five Civilized Tribes in Oklahoma of one-half or more Indian blood, enrolled or unenrolled, are hereby declared to be restricted and shall remain subject to the jurisdiction of said Secretary until April 26, 1956, subject to expenditure in the meantime for the use and benefit of the individual Indians to whom such funds and securities belong, under such rules and regulations as said Secretary may prescribe: Provided, That where the entire interest in any tract of restricted and tax-exempt land belonging to members of the Five Civilized Tribes is acquired by inheritance, devise, gift, or purchase, with restricted funds, by or for restricted Indians, such lands shall remain restricted and tax-exempt during the life of and as long as held by such restricted Indians, but not longer than April 26, 1956, unless the restrictions are removed in the meantime in the manner provided by law: Provided further, That such restricted and tax-exempt land held by anyone, acquired as herein provided, shall not exceed one hundred and sixty acres: And provided further, That all minerals including oil and gas, produced from said land so acquired shall be subject to all State and Federal taxes as provided in section 3 of the Act approved May 10, 1928 (45 Stat. L. 495).” See King v. Ickes, 62 App.D.C. 83, 64 F.(2d) 979; Holmes v. United States (C.C.A.) 53 F.(2d) 960; Kiker v. United States (C.C.A.) 63 F.(2d) 957. The first proviso of Act of May 27, 1908, covered only interests of full-blood Indian heirs acquired by descent and not by devise. United States v. Fooshee et al. (C.C.A.8) 225 F. 521. By section 1 of Act approved April 12, 1926 (44 Stat. 239), amending section 9 of Act of May 27, 1908, 35 Stat." }, { "docid": "17436623", "title": "", "text": "without merit. If good as to a mental incompetent, it would be good as to an Indian under age or even an infant. The suggestion has been disapproved by the Circuit Court of Appeals for the Eighth Circuit. Decree affirmed. Mr. Justice Stone did not participate in the consideration or decision of this case. 33 F. (2d) 340. 37 F. (2d) 860. Acts March 1, 1901, c. 676, 31 Stat. 861; June 30, 1902, c. 1323, 32 Stat. 500; May 27, 1908, c. 199, 35 Stat. 312. And see Act May 10, 1928, c. 517, 45 Stat. 495. Sunderland v. United States, 266 U. S. 226, 235; Starr v. Campbell, 208 U. S. 527, 533; United States v. Thurston County, 143 Fed. 287, 291; National Bank of Commerce v. Anderson, 147 Fed. 87. 90. The Act of May 27,1908, c. 199, 35 Stat. 312, provides: “Sec. 1. . . . That ... all allotted lands of enrolled full-bloods . . . shall not be subject to alienation, contract to sell, power of attorney, or any other incumbrance . . . except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe. . . . “ Sec. 2. That all lands other than homesteads . . . from which restrictions have not been removed may be leased by the allottee if an adult, or by guardian or curator under order of the proper probate court if a minor or incompetent, for a period not to exceed five years, without the privilege of renewal: Provided, That leases of restricted lands for oil, gas or other mining purposes, leases of restricted homesteads for more than one year, and leases of restricted lands for periods of more than five years, may be made, with the approval of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not otherwise.” Choate v. Trapp, 224 U. S. 665, 677. And" }, { "docid": "23467379", "title": "", "text": "Interior and the county court, provided that the land “ should not be alienated or leased during the lifetime of the grantee prior to April 26, 1931, without the consent of and approval by the Secretary of the Interior.” Before the purchase in 1915 the land had been subject to state, county and municipal taxation. Since then local ad valorem taxes on the land have been paid without objection by the United States Indian Agency. The tax now in question was levied and collected under Okla. Comp. Stats. (1921) § 9814, which imposes on those engaged in the production of oil and gas a tax equal to 3% of the gross value of the oil and gas produced “ less the royalty interest.” The questions certified are as follows: 1. Had the Secretary of the Interior, on October 24, 1915, when this land was purchased, power to exempt from such state taxation land purchased under his supervision for a full blood Creek Indian with trust funds of that Indian, where the land so purchased w,as, at that time, subject to all State taxes? 2. Is this tax a forbidden tax upon a federal instrumentality? In Sunderland v. United States, 266 U. S. 226, a restriction against alienation like that in the present case imposed by the Secretary on lands purchased for a Creek Indian, as were Tiger’s, under § 1, c. 199 of the Act of May 27, 1908, 35 Stat. 312, was held to be a valid exercise of the power of the Secretary to remove restrictions from the land of full blood Indians “ wholly or in part, under such rules and regulations concerning terms of sale and disposal of proceeds for the benefit of the respective Indians as he may prescribe.” In an earlier case, McCurdy v. United States, 246 U. S. 263, this Court had held that a similar restriction upon lands similarly purchased for an Osage Indian could not have the effect contended for there, and here, of exempting the land from state taxation for the reason that under the applicable provisions of a different" }, { "docid": "9357913", "title": "", "text": "of the Secretary of the Interior in relation thereto. Section one of the Act provides, among other things, “and all allotted lands of enrolled full-bloods * * 91 shall not be subject to1 alienation, contract to sell, power of attorney, or any other incumbrance prior to April twenty-six, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe.” Section 2, in part: “That leases of restricted lands for oil, gas or other mining purposes, * * * may be made, with tfcie approval of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not otherwise.” Section 5: “That any attempted alienation or incumbrance by deed, mortgage, contract to sell, power of attorney, or other instrument or method of incumbering real estate, made before or after the approval of this Act, which affects the title of the land allotted to allottees of the Five Civilized Tribes prior to removal of restrictions therefrom, and also any lease of such restricted land made in violation of law before or after the approval of this Act shall be absolutely null and void.” These provisions of the Act established Barnett’s legal ineompeteney to manage his own affairs, and so we need give no consideration to the allegations that he was in fact mentally incompetent. Congress, in the exercise of undoubted power, provided in this Act that the Government should control and preserve Barnett’s property. This protecting care included not only his allotment but also the income therefrom. Sunderland v. United States, 266 U. S. 226, 45 S. Ct. 64, 69 L. Ed. 259; United States v. Brown (C. C. A.) 8 F.(2d) 564. The United States, through its Secretary, took the royalties for mineral produced from his allotment, as his guardian, and held them and the bonds purchased with them in trust for him. Assuming the Secretary had power to remove restrictions on" } ]

[ { "docid": "11800204", "title": "", "text": "related judicial proceedings. Id. at 7, 26. B. Procedural History The plaintiffs brought suits regarding the restraining order in at least two state court actions and five federal court actions. Def. ABA’s Mot. to Dismiss at 3-5. In their suit in the United States District Court for the District of Colorado before Magistrate Judge Schlatter, the plaintiffs brought suit against all of the defendants in this case. Sieverding et al. v. Colo. Bar Ass’n et al., 2003 WL 22400218 (D.Colo. Oct.14, 2003) (unpublished opinion). After a painstakingly thorough review of the plaintiffs’ “verbose, prolix, and impossible to understand” complaint, Magistrate Judge Schlatter recommended that the court sanction the plaintiffs, dismiss the case with prejudice and enjoin the plaintiffs from further litigating issues based on the transactions or series of transactions underlying the case, unless represented by counsel. Id. at *1. Judge Nottingham of the district court adopted Magistrate Judge Schlatter’s recommendations in full. Order, Civ. No. 02-1950 (D.Colo. Mar. 19, 2004) (“Order Accepting Magistrate Judge’s Recommendation”) at 3. The Tenth Circuit Court of Appeals affirmed the district court’s decision. Sieverding et al. v. Colo. Bar Ass’n, 126 Fed.Appx. 457, 459 (10th Cir.Apr.22, 2005) (unpublished opinion). In response to the Tenth Circuit’s ruling, the plaintiffs have filed suits in numerous courts across the nation, in some cases filing multiple suits in the same court. On June 27, 2005, the plaintiffs brought an independent action in this court to set aside the Routt County Court and district court of Colorado judgments on the basis of fraud. Am. Compl. at 6. The plaintiffs contend that the various defendants violated the law through “extortion, lying about the facts and laws, attempting to bring about wrongful incarceration, first amendment retaliation, abuse of process, and civil conspiracy under 42 U.S.C. § 1983.” Id. The plaintiffs also seek an injunction against defendant The World Company from further publishing articles regarding the Sieverding-Bennett property dispute on the internet. Id. at 70. The ABA moves to dismiss the case pursuant to the doctrine of res judicata and for failure to state a claim. The Routt County Court moves to" } ]

[ { "docid": "4773769", "title": "", "text": "allegations against individuals and entities that are not defendants to this action. See Compl. ¶¶ 23, 29, 42, 48, 61-62, 103-05, 144, 191. The Court lacks jurisdiction over these non-defendants, and will dismiss all allegations against them. III. Pending Motions Although the Court will grant in full defendant’s motion to dismiss or in the alternative for summary judgment, there remain over a dozen pending motions filed by the Sieverdings. These motions fall into three categories. Some simply seek to substitute or withdraw memoranda. See, e.g., [Docket Entries 16, 53], The Court will grant all such motions. Others seek to strike filings by the Department of Justice. See, e.g., [Docket Entries 23, 31, 32]. The Court will deny those. The Sieverdings’ remaining motions, which are accompanied by over a thousand pages of disorganized, largely irrelevant exhibits, generally repeat the arguments made in the complaint and amended complaint, or levy new allegations that are entirely absent from the complaints. See, e.g., [Docket Entries 36, 39, 41, 45, 52]. The Court will deny all these motions as well. The Court will also deny as moot the Department’s motion for a protective order imposing filing restrictions on the Sieverdings. CONCLUSION For the foregoing reasons, the Court will grant the Department’s motion to dismiss or in the alternative for summary judgment. A separate order accompanies this Memorandum Opinion. . This is by no means a comprehensive summary of the Sieverdings' extensive litigation history. Indeed, they have filed dozens of cases in federal court over the years, many frivolous or even sanctionable. See, e.g., Sieverding v. Colo. Bar Ass’n, 310 Fed.Appx. 229, 232 (10th Cir.2009) (\"This appeal is frivolous and represents another example of the Sieverdings’ abusive litigation practices.”); Sieverding v. Colo. Bar Ass’n, 237 Fed.Appx. 355 (10th Cir.2007) (affirming sanctions against the Sieverdings of approximately $100,000); Sieverding v. Colo. Bar Ass’n, 126 Fed.Appx. 457, 459 (10th Cir.2005) (describing the \"Herculean” feat of a magistrate judge in \"ma[king] as much sense as possible of [the Sieverdings’] numerous complaints and amended complaints”); Sieverding v. Amer. Bar Ass’n, 466 F.Supp.2d 224, 229 n. 4 (D.D.C.2006) (\"Sieverding II\") (imposing" }, { "docid": "4773770", "title": "", "text": "The Court will also deny as moot the Department’s motion for a protective order imposing filing restrictions on the Sieverdings. CONCLUSION For the foregoing reasons, the Court will grant the Department’s motion to dismiss or in the alternative for summary judgment. A separate order accompanies this Memorandum Opinion. . This is by no means a comprehensive summary of the Sieverdings' extensive litigation history. Indeed, they have filed dozens of cases in federal court over the years, many frivolous or even sanctionable. See, e.g., Sieverding v. Colo. Bar Ass’n, 310 Fed.Appx. 229, 232 (10th Cir.2009) (\"This appeal is frivolous and represents another example of the Sieverdings’ abusive litigation practices.”); Sieverding v. Colo. Bar Ass’n, 237 Fed.Appx. 355 (10th Cir.2007) (affirming sanctions against the Sieverdings of approximately $100,000); Sieverding v. Colo. Bar Ass’n, 126 Fed.Appx. 457, 459 (10th Cir.2005) (describing the \"Herculean” feat of a magistrate judge in \"ma[king] as much sense as possible of [the Sieverdings’] numerous complaints and amended complaints”); Sieverding v. Amer. Bar Ass’n, 466 F.Supp.2d 224, 229 n. 4 (D.D.C.2006) (\"Sieverding II\") (imposing filing restrictions against the Sieverdings and declaring \"[f]or its part, this court's involvement in these frivolous cases is finished”). . In general, \"[o]nce an amended pleading is interposed, the original pleading no longer performs any function in the case.” 6 Charles Allen Wright & Arthur R. Miller, et al., § 1476 (2d ed.1990). But mindful of its \"obligation to construe pro se filings liberally,” Toolasprashad v. Bur. of Prisons, 286 F.3d 576, 583 (D.C.Cir.2002), the Court will address claims made in the Sieverdings’ original complaint, as well as those made in their amended complaint. . In their voluminous filings, totaling well over a thousand pages, the Sieverdings have made quite literally dozens of \"claims” — often cryptic and incomprehensible — found nowhere in either their complaint or their amended complaint. See, e.g., Revised Mem. in Opp’n to Def.’s Mot. to Dismiss (\"Revised Mem.”) [Docket Entry 16] at 11-12 (RICO violation); id. at 26-27' (substantive Due Process violation). The Court will not address these claims, which are not properly before it. . The Act defines \"system" }, { "docid": "4773736", "title": "", "text": "F.3d 1340, 1342-43 (10th Cir.2006) (“Sieverding I”). In light of what it described as the Sieverdings’ “abusive litigation practices,” the district court also imposed filing restrictions on the Sieverdings. See Sieverding v. Colo. Bar Ass’n, No. 02-cv-1950 (D. Colo, filed Oct. 11, 2002) [Docket Entry 788]; see also Sieverding I, 469 F.3d at 1343-45 (affirming filing restrictions in part). Ms. Sieverding apparently failed to comply with these filing restrictions, and was arrested and jailed for civil contempt several times between 2005 and 2007. See Sieverding I, 469 F.3d at 1343; Sieverding v. Colo. Bar Ass’n, 244 Fed.Appx. 200, 205 (10th Cir.2007). In this case, the Sieverdings allege dozens of Privacy Act and other violations stemming from these arrests and incarcerations. STANDARD OF REVIEW All that the Federal Rules of Civil Procedure require of a complaint is that it 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)); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955); accord Atherton v. Disk of Columbia Office of the Mayor, 567 F.3d 672, 681 (D.C.Cir.2009). A claim to relief is plausible" }, { "docid": "5034793", "title": "", "text": "for a more definite statement seeks “a court order requiring DOJ to answer the following questions.” See ECF No. 25. These questions are fashioned as interrogatories and include requests for admissions and for documents. However, the Court has not ordered discovery and finds no ambiguity from the DOJ’s filings at ECF Nos. 16, 21, 22, and 23 to make clarification necessary. Finally, the Court denies the “dispositive motion to impeach DOJ’s witnesses and counsel and find DOJ in default of damage claims for unauthorized possession of the Sieverdings’ First Amendment Records,” ECF No. 34, and the motion for hearing, to expedite, and to join the prior motion, ECF No. 35. The reliance on Rule 607 is inapplicable here, because there are no witnesses to impeach. To the extent that the motion raises issues relating to their FOIA requests and claims, that aspect of the motion is either premature or being resolved by another court, as the Sieverdings admit that they have previously filed FOIA actions raising the same types of arguments in the Eastern District of Virginia. See also Mot. to Impeach ¶ 1; Bordley Decl. ¶ 10 Accordingly, ECF No. 34, and the Sieverdings’ related motion, ECF No. 35, requesting a hearing and to expedite the resolution of the motion, will be denied. CONCLUSION For the foregoing reasons, the Court will grant the Department’s motion to dismiss in part or in the alternative for partial summary judgment. It will deny the Sieverdings’ motion for partial summary judgment. Finally, it will deny all the other pending motions that have been filed by them. A separate order accompanies this Memorandum Opinion. SO ORDERED. . The DOJ's motion is not directed to the Sieverdings’ FOIA claims set out in paragraphs 155-60 of their amended complaint. See ECF No. 16 at 1 nl. . The number of cases brought by the Sieverdings arising out the 1992 property dispute is too many to mention. Indeed, they have filed dozens of cases in federal court over the years, many frivolous or even sanctionable. See, e.g., Sieverding v. Colo. Bar Ass'n, 310 Fed.Appx. 229, 232 (10th" }, { "docid": "5034763", "title": "", "text": "MEMORANDUM OPINION JOHN D. BATES, District Judge. Kay and David Sieverding, proceeding pro se, have sued the United States Department of Justice (“DOJ” or “Department”) alleging violations of the Privacy Act, 5 U.S.C. § 552a et seq., as well as a number of other claims. Currently before the Court is the Department’s motion to dismiss the Sieverdings’ amended complaint in part or in the alternative for partial summary judgment. Also pending are the Sieverdings’ motion for partial summary judgment and an array of miscellaneous motions. For the reasons detailed below, the Court will grant the Department’s motion to dismiss in part or in the alternative for partial summary judgment and will deny the Sieverdings’ motion for partial summary judgment and their miscellaneous motions. BACKGROUND Given the Sieverdings’ extensive litigation history, the factual background can be stated briefly. The Sieverdings originally sued dozens of individuals and entities in 2002 for damages arising out of a property dispute with their neighbors. See Sieverding v. Colo. Bar Ass’n, 02-M1950, 2003 WL 22400218, at *1 (D.Colo. Oct. 14, 2003) (“Sieverding I”). The district court, adopting a magistrate judge’s recommendation, dismissed the Sieverdings’ complaint in full and the Tenth Circuit affirmed. See Sieverding v. Colo. Bar Ass’n, 469 F.3d 1340, 1342-43 (10th Cir. 2006) (“Sieverding II”). In light of what it described as the Sieverdings’ “abusive litigation practices,” the district court also imposed filing restrictions on the Sieverdings. Id. at 1344-45 (affirming filing restrictions in part). Kay Sieverding apparently failed to comply with these filing restrictions, and was arrested and jailed for civil contempt several times between 2005 and 2007. See id. at 1343; Sieverding v. Colo. Bar Ass’n, 244 Fed.Appx. 200, 205 (10th Cir.2007). In this case, as well as in other cases, the Sieverdings once again allege dozens of Privacy Act and other violations stemming from these arrests and incarcerations. See Sieverding v. Am. Bar Ass’n, 439 F.Supp.2d 111 (D.D.C.2006) (“Sieverding III”)', Sieverding v. Dep’t of Justice, 693 F.Supp.2d 93 (D.D.C.2010) (“Sieverding V”). On March 25, 2011, the Sieverdings filed a suit raising the same issues as addressed here, but they later voluntarily" }, { "docid": "4174044", "title": "", "text": "families escalated, culminating in the issuance of a restraining order against Kay Sieverding. Id. The plaintiffs have brought suits challenging the restraining order in at least two state court actions and numerous federal court actions. Id. at 114-15. In their suit in the United States District Court for the District of Colorado before Magistrate Judge Schlatter, the plaintiffs brought suit against all the defendants party to this case. Id. After a painstakingly thorough review of the plaintiffs’ “verbose, prolix, and impossible to understand” complaint, Magistrate Judge Schlatter recommended that the court sanction the plaintiffs, dismiss the case with prejudice, and enjoin the plaintiffs from further litigating issues based on the transactions or series of transactions underlying the case, unless represented by counsel. Id. Judge Nottingham of the district court adopted Magistrate Schlatter’s recommendations in full. Id. The Tenth Circuit Court of Appeals affirmed the district court’s order. Sieverding v. Colo. Bar Ass’n, 2005 WL 928748, 2005 WL 928748, at * 1 (10th Cir.2005) (unpublished opinion). Ignoring Judge Nottingham’s injunction and the Tenth Circuit’s decision affirming the injunction, the plaintiffs have filed suits in numerous courts across the nation, in some cases filing multiple suits in the same court. Def. White & Case’s Mot. to Dismiss at 3. On September 2, 2005, Judge Nottingham held plaintiff Kay Sieverding in contempt of his order enjoining further litigation without assistance of counsel and remanded her to the custody of the U.S. Marshall. Id. at 4. During her incarceration for contempt of court, the plaintiffs filed the instant suit alleging that the defendants engaged in a conspiracy to jail plaintiff Kay Sieverding. B. Procedural Background On June 27, 2005, the plaintiffs brought an independent action in this court to set aside the Routt County Court and district court of Colorado judgments on the basis of fraud. Sieverding, 439 F.Supp.2d at 114 n. 1. This court dismissed that complaint on July 17, 2006, concluding that the Tenth Circuit’s ruling had a res judicata effect. In their current complaint, the plaintiffs allege that the defendants conspired with Judge Nottingham in Colorado. Compl. at 1. Because this" }, { "docid": "5034795", "title": "", "text": "Cir.2009) (“This appeal is frivolous and represents another example of the Sieverdings' abusive litigation practices.”); Sieverding v. Colo. Bar Ass’n, 126 Fed.Appx. 457, 459 (10th Cir.2005) (describing the “Herculean” feat of a magistrate judge in \"ma[king] as much sense as possible of [the Sieverdings'] numerous complaints and amended complaints”); Sieverding v. Am. Bar Ass'n, 466 F.Supp.2d 224, 229 n. 4 (D.D.C.2006) (\"Sieverding TV”) (declaring “[f]or its part, this court's involvement in these frivolous cases is finished”); Sieverding V, 693 F.Supp.2d at 101 n. 3 (describing Sieverdings’ filings \"totaling well over a thousand pages” and “the literally dozens of 'claims' ” that were “cryptic and incomprehensible”). . JABS is administered by the USMS. See Exemption of Records Systems Under the Privacy Act, Exemption of U.S. Marshals Service Systems, 28 C.F.R. § 16.101(s). . Sieverding alleges this claim against the FBI. However, as represented by the DOJ, these systems are maintained by the USMS. The Court construes Sieverding's claim accordingly. . These include claims based on the USMS’s transportation of Sieverding in handcuffs, and that the USMS exceeded its authority in incarcerating her, even though she had not been charged with a crime. See Sieverding V, 693 F.Supp.2d at 108-112." }, { "docid": "4773768", "title": "", "text": "no DOJ representative was present at several court hearings in 2005 and 2006 that led to her being detained in federal custody. See Compl. ¶ 166. Thus, she says, “[b]y its silence, DOJ illegally allowed non-DOJ lawyers to conduct litigation involving the U.S. government without the participation of DOJ lawyers.” Compl. ¶ 171; see also Compl. ¶¶ 167-70. She apparently relies on 28 U.S.C. § 516, which generally reserves “to officers of the Department of Justice” “the conduct of litigation in which the United States ... is interested.” See Compl. ¶ 168 (citing 28 U.S.C. § 516). But while a violation of § 516 may provide a defense to an allegedly improper proceeding, see, e.g., Mehle v. Am. Mgmt. Sys., 172 F.Supp.2d 203, 205-06 (D.D.C.2001), no court has ever found a civil cause of action against DOJ for alleged violations of this statute. Rather, the time and place for Ms. Sieverding to raise this claim was at the allegedly improper hearings themselves. D. Allegations against non-defendants Lastly, Ms. Sieverding asserts a number of non-Privacy Act allegations against individuals and entities that are not defendants to this action. See Compl. ¶¶ 23, 29, 42, 48, 61-62, 103-05, 144, 191. The Court lacks jurisdiction over these non-defendants, and will dismiss all allegations against them. III. Pending Motions Although the Court will grant in full defendant’s motion to dismiss or in the alternative for summary judgment, there remain over a dozen pending motions filed by the Sieverdings. These motions fall into three categories. Some simply seek to substitute or withdraw memoranda. See, e.g., [Docket Entries 16, 53], The Court will grant all such motions. Others seek to strike filings by the Department of Justice. See, e.g., [Docket Entries 23, 31, 32]. The Court will deny those. The Sieverdings’ remaining motions, which are accompanied by over a thousand pages of disorganized, largely irrelevant exhibits, generally repeat the arguments made in the complaint and amended complaint, or levy new allegations that are entirely absent from the complaints. See, e.g., [Docket Entries 36, 39, 41, 45, 52]. The Court will deny all these motions as well." }, { "docid": "5034774", "title": "", "text": "activities purportedly kept in the Prisoner Tracking System (“PTS”), see Am. Compl. ¶¶ 46-54; Sieverding V, 693 F.Supp.2d at 105 (discussing same claims). These same claims based on records she already received from the PTS are barred. Sieverding also continues to make other claims related to her arrests and incarcerations, which occurred between 2005 and 2007. These would also appear to be barred. See Walker v. Seldman, 471 F.Supp.2d 106, 114 n. 12 (D.D.C.2007) (“[Cjourts may dismiss sua sponte when they are on notice that a claim had been previously decided because of the policy interest in avoiding unnecessary judicial waste.”) (citing Arizona v. California, 530 U.S. 392, 412, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000)). However, Sieverding’s claims insofar as they involve documents and information that she received after the resolution of Sieverding V would not be barred. Her current complaint and filings refer to documents she obtained in December 2010-after final judgment was entered in Sieverding V and, indeed, after October 2010, when the D.C. Circuit summarily affirmed the judgment. These records appear to have come from the Joint Automated Booking System (JABS). Sieverding attaches to her complaint a document from JABS that lists “12/6/2010” in the lower right-hand corner, which suggests that Sieverding did receive some documents in December 2010. A letter from the United States Marshals Service (“USMS”), however, raises a question as to whether additional documents could have even been produced. See Ex. AA to PL’s Mot., ECF No. 20, Letter from USMS (Mar. 24, 2011) (“By letter dated July 16, 2007, the USMS released all records in our possession ... [w]e have no additional records regarding you.”). Based on the uncertainty in the record, the Court would be reluctant to bar Sieverding’s claims regarding JABS or other December 2010 documents she received on res judicata grounds. Ultimately, however, Sieverding’s assorted claims of Privacy Act violations are still unavailing, for the reasons explained below. II. Privacy Act A. Statutory Background The Privacy Act, 5 U.S.C. § 552a et seq., “imposes a set of substantive obligations on agencies that maintain systems of records.” Skinner v. Dep’t" }, { "docid": "4773767", "title": "", "text": "mandate to investigate [alleged] crimes and they chose not to.” Compl. ¶ 202; see also Compl. ¶¶ 200-01. The government’s “decision to allocate limited governmental resources to investigate a reported crime,” however, “is a discretionary function.” Martinez v. United States, 587 F.Supp.2d 245, 248-49 (D.D.C.2008); see also Justice for All Act, 18 U.S.C. § 3771(d)(6) (“Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.”). DOJ thus had no obligation to pursue Ms. Sieverding’s allegations of criminal behavior, and she cannot state a claim for relief based on her allegations of a failure to subpoena or investigate. Ms. Sieverding next complains that DOJ failed to offer her “reentry services even thought ] the programs are supposed to be offered to all released prisoners.” Compl. ¶ 141; see also Compl. ¶¶ 140, 143, 166. There is no statutory requirement for DOJ to offer Ms. Sieverding any “reentry services” programs upon her release from custody, however, and she identifies none. Ms. Sieverding also alleges that no DOJ representative was present at several court hearings in 2005 and 2006 that led to her being detained in federal custody. See Compl. ¶ 166. Thus, she says, “[b]y its silence, DOJ illegally allowed non-DOJ lawyers to conduct litigation involving the U.S. government without the participation of DOJ lawyers.” Compl. ¶ 171; see also Compl. ¶¶ 167-70. She apparently relies on 28 U.S.C. § 516, which generally reserves “to officers of the Department of Justice” “the conduct of litigation in which the United States ... is interested.” See Compl. ¶ 168 (citing 28 U.S.C. § 516). But while a violation of § 516 may provide a defense to an allegedly improper proceeding, see, e.g., Mehle v. Am. Mgmt. Sys., 172 F.Supp.2d 203, 205-06 (D.D.C.2001), no court has ever found a civil cause of action against DOJ for alleged violations of this statute. Rather, the time and place for Ms. Sieverding to raise this claim was at the allegedly improper hearings themselves. D. Allegations against non-defendants Lastly, Ms. Sieverding asserts a number of non-Privacy Act" }, { "docid": "5034764", "title": "", "text": "(“Sieverding I”). The district court, adopting a magistrate judge’s recommendation, dismissed the Sieverdings’ complaint in full and the Tenth Circuit affirmed. See Sieverding v. Colo. Bar Ass’n, 469 F.3d 1340, 1342-43 (10th Cir. 2006) (“Sieverding II”). In light of what it described as the Sieverdings’ “abusive litigation practices,” the district court also imposed filing restrictions on the Sieverdings. Id. at 1344-45 (affirming filing restrictions in part). Kay Sieverding apparently failed to comply with these filing restrictions, and was arrested and jailed for civil contempt several times between 2005 and 2007. See id. at 1343; Sieverding v. Colo. Bar Ass’n, 244 Fed.Appx. 200, 205 (10th Cir.2007). In this case, as well as in other cases, the Sieverdings once again allege dozens of Privacy Act and other violations stemming from these arrests and incarcerations. See Sieverding v. Am. Bar Ass’n, 439 F.Supp.2d 111 (D.D.C.2006) (“Sieverding III”)', Sieverding v. Dep’t of Justice, 693 F.Supp.2d 93 (D.D.C.2010) (“Sieverding V”). On March 25, 2011, the Sieverdings filed a suit raising the same issues as addressed here, but they later voluntarily withdrew their claims. See Sieverding v. Dep’t of Justice, Civ. Act. No. 11-90 (D.D.C.). Subsequently, this action was filed. STANDARD OF REVIEW All that the Federal Rules of Civil Procedure require of a complaint is that it 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)); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-56, 127" }, { "docid": "10665151", "title": "", "text": "an order entered on March 19, 2004, but expanded on the magistrate judge’s recommended filing restrictions by enjoining the Sieverdings from filing lawsuits related to this subject matter in the District of Colorado or any other court. The Sieverdings filed three appeals from the March 2004 order in this court and they were consolidated. The district court’s order adopting the magistrate judge’s recommendation was summarily affirmed on appeal. We observed that “appellants did not assert error with the imposition of fifing restrictions and, therefore, this court will enforce those restrictions.” Sieverding v. Colo. Bar Ass’n, 126 Fed.Appx. 457, 459 (10th Cir.2005). In late 2004 and 2005, the Sieverdings continued filing actions relating to the subject matter of their previous lawsuit. They filed five new civil actions in the federal district courts in Minnesota, Northern Illinois, and the District of Columbia; one new civil action in the state court in Denver County, Colorado; and one appeal in the Eighth Circuit Court of Appeals. In the summer of 2005, the defendants filed a motion requesting a show cause order as to why the Sieverdings should not be sanctioned for violating the fifing restrictions portion of the March 2004 order. On September 2, the district court held a hearing and found the Siev-erdings to be in contempt of court for violating the March 2004 order. The district court gave both of the Sieverdings the option of dismissing the lawsuits that remained pending in the District of Columbia and Colorado state court or going to jail. Ms. Sieverding refused to dismiss the lawsuits and was sent to jail. Mr. Sieverd-ing withdrew his name from the pending cases. On January 4, 2006, Judge Nottingham held a show cause hearing, and ordered Ms. Sieverding to dismiss the remaining lawsuits that had been filed in violation of the March 2004 order. Ms. Sieverding was released from custody with the condition that she dismiss all of her remaining lawsuits by January 11. At that hearing, Judge Nottingham also entered another order, which prohibited Ms. Sieverding from fifing any further lawsuits anywhere in this country unless she is represented" }, { "docid": "5034794", "title": "", "text": "of Virginia. See also Mot. to Impeach ¶ 1; Bordley Decl. ¶ 10 Accordingly, ECF No. 34, and the Sieverdings’ related motion, ECF No. 35, requesting a hearing and to expedite the resolution of the motion, will be denied. CONCLUSION For the foregoing reasons, the Court will grant the Department’s motion to dismiss in part or in the alternative for partial summary judgment. It will deny the Sieverdings’ motion for partial summary judgment. Finally, it will deny all the other pending motions that have been filed by them. A separate order accompanies this Memorandum Opinion. SO ORDERED. . The DOJ's motion is not directed to the Sieverdings’ FOIA claims set out in paragraphs 155-60 of their amended complaint. See ECF No. 16 at 1 nl. . The number of cases brought by the Sieverdings arising out the 1992 property dispute is too many to mention. Indeed, they have filed dozens of cases in federal court over the years, many frivolous or even sanctionable. See, e.g., Sieverding v. Colo. Bar Ass'n, 310 Fed.Appx. 229, 232 (10th Cir.2009) (“This appeal is frivolous and represents another example of the Sieverdings' abusive litigation practices.”); Sieverding v. Colo. Bar Ass’n, 126 Fed.Appx. 457, 459 (10th Cir.2005) (describing the “Herculean” feat of a magistrate judge in \"ma[king] as much sense as possible of [the Sieverdings'] numerous complaints and amended complaints”); Sieverding v. Am. Bar Ass'n, 466 F.Supp.2d 224, 229 n. 4 (D.D.C.2006) (\"Sieverding TV”) (declaring “[f]or its part, this court's involvement in these frivolous cases is finished”); Sieverding V, 693 F.Supp.2d at 101 n. 3 (describing Sieverdings’ filings \"totaling well over a thousand pages” and “the literally dozens of 'claims' ” that were “cryptic and incomprehensible”). . JABS is administered by the USMS. See Exemption of Records Systems Under the Privacy Act, Exemption of U.S. Marshals Service Systems, 28 C.F.R. § 16.101(s). . Sieverding alleges this claim against the FBI. However, as represented by the DOJ, these systems are maintained by the USMS. The Court construes Sieverding's claim accordingly. . These include claims based on the USMS’s transportation of Sieverding in handcuffs, and that the USMS" }, { "docid": "10665150", "title": "", "text": "BALDOCK, Circuit Judge. Kay Sieverding, proceeding pro se, appeals from the district court’s order imposing filing restrictions. We affirm the district court’s imposition of filing restrictions, but we conclude that a portion of the order must be modified. Background Ms. Sieverding, her husband, and two sons filed a complaint in the District of Colorado in October 2002. The complaint was 106 pages long and set forth claims against thirty-six individuals or entities. The underlying issue in the case related to the alleged violation of the Sieverdings’ rights with regard to zoning decisions that affected them and their former neighbors. During the pendency of the case, the Siev-erdings filed more than 100 motions. In October 2003, the magistrate judge assigned to the case issued a sixty-one page recommendation that the case be dismissed with prejudice; that the Sieverd-ings be required to pay defendants’ costs and fees; and that they be enjoined from commencing further litigation in the District of Colorado regarding these events without first obtaining counsel. The district court accepted and adopted the recommendations in an order entered on March 19, 2004, but expanded on the magistrate judge’s recommended filing restrictions by enjoining the Sieverdings from filing lawsuits related to this subject matter in the District of Colorado or any other court. The Sieverdings filed three appeals from the March 2004 order in this court and they were consolidated. The district court’s order adopting the magistrate judge’s recommendation was summarily affirmed on appeal. We observed that “appellants did not assert error with the imposition of fifing restrictions and, therefore, this court will enforce those restrictions.” Sieverding v. Colo. Bar Ass’n, 126 Fed.Appx. 457, 459 (10th Cir.2005). In late 2004 and 2005, the Sieverdings continued filing actions relating to the subject matter of their previous lawsuit. They filed five new civil actions in the federal district courts in Minnesota, Northern Illinois, and the District of Columbia; one new civil action in the state court in Denver County, Colorado; and one appeal in the Eighth Circuit Court of Appeals. In the summer of 2005, the defendants filed a motion requesting a show" }, { "docid": "4773735", "title": "", "text": "MEMORANDUM OPINION JOHN D. BATES, District Judge. Kay and David Sieverding, proceeding pro se, have sued the United States Department of Justice alleging violations of the Privacy Act, as well as a number of other claims arising under federal law. Currently before the Court is [8] the Department’s motion to dismiss the Sieverdings’ complaint or in the alternative for summary judgment. Also pending are over a dozen motions filed by the Sieverdings, as well as a motion for a protective order filed by the Department. For the reasons detailed below, the Court will grant the Department’s motion to dismiss or in the alternative for summary judgment, and will deny all other pending motions, other than a few procedural ones. BACKGROUND The Sieverdings originally sued dozens of individuals and entities in 2002 for damages arising out of a property dispute with their neighbors. See Sieverding v. Colo. Bar Ass’n, 2003 WL 22400218, at *1 (D.Colo.2003). The district court, adopting a magistrate judge’s recommendation, dismissed the Sieverdings’ complaint in full. See Sieverding v. Colo. Bar Ass’n, 469 F.3d 1340, 1342-43 (10th Cir.2006) (“Sieverding I”). In light of what it described as the Sieverdings’ “abusive litigation practices,” the district court also imposed filing restrictions on the Sieverdings. See Sieverding v. Colo. Bar Ass’n, No. 02-cv-1950 (D. Colo, filed Oct. 11, 2002) [Docket Entry 788]; see also Sieverding I, 469 F.3d at 1343-45 (affirming filing restrictions in part). Ms. Sieverding apparently failed to comply with these filing restrictions, and was arrested and jailed for civil contempt several times between 2005 and 2007. See Sieverding I, 469 F.3d at 1343; Sieverding v. Colo. Bar Ass’n, 244 Fed.Appx. 200, 205 (10th Cir.2007). In this case, the Sieverdings allege dozens of Privacy Act and other violations stemming from these arrests and incarcerations. STANDARD OF REVIEW All that the Federal Rules of Civil Procedure require of a complaint is that it 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" }, { "docid": "5034791", "title": "", "text": "and sometimes in a prison outfit.” Statement of Material Facts ¶ 32. However, these are not within the common understanding of the meaning of “criminal records” and, in any event, there is no indication of unlawful dissemination by the DOJ. IV. Miscellaneous Motions The Court now turns to the numerous miscellaneous motions the Sieverdings have filed. Some are voluminous and vague; at times, what they seek is simply non-existent. For the reasons that follow, all of the motions will be denied. The Court denies the motion for leave to file corrected docketed material, ECF No. 3, and the motion for decision on related cases, ECF No. 6, on grounds that the motions are now mooted, having already been resolved by subsequent docket activity and action. The motion to use Existing ECF Account, ECF No. 2, is also denied. Contrary to the plaintiffs’ contentions, ECF access is not a “due process right” but is granted at the discretion of the Court. See LCvR 5.4. The Sieverdings have previously requested access to ECF, and those requests have been denied. See Sieverding v. Am. Bar Ass’n, 05-cv-1283, ECF Nos. 4, 76 & 79 (D.D.C.). With respect to the motion that the Court take “judicial notice of adjudicative fact under Rule 201(d)” that the Federal Regis ter does not contain, inter alia, any use of the phrases “civil bench warrant” or “civil contempt of court commitment,” the Court also denies the motion as moot, having disposed of all of Sieverding’s claims. The Sieverdings also move for a court order to have the DOJ “provide a list of the documents released to Plaintiffs in July 2007” pursuant to the Freedom of Information Act (“FOIA”), ECF No. 20. The DOJ asserts that it has no such list. See Opp’n to Motion for Court Order to Provide a List at 2; Declaration of William E. Bordley (“Bordley Decl.”) ¶ 7, ECF No. 23-1 (Aug. 15, 2011). Nor does the DOJ have an obligation to generate such a list. See Krohn v. Dep’t of Justice, 628 F.2d 195, 197-98 (D.C.Cir.1980). Hence, that motion will be denied. The motion" }, { "docid": "4174051", "title": "", "text": "ability to impose his March 19, 2004 order in the first place. Compl. at 4 (stating that “the right to sue is sacred”). Further, Judge Nottingham’s decision to hold plaintiff Kay Sieverding in contempt of his order is nothing more than an exercise of his power to enforce compliance with the order challenged by the plaintiffs. Spallone v. United States, 493 U.S. 265, 276, 110 S.Ct. 625, 107 L.Ed.2d 644 (1990). Because the instant complaint, like the complaint in Civil Action 05-1283, is essentially a challenge to Judge Nottingham’s March 19, 2004 order enjoining the plaintiffs from filing further pro se lawsuits, the court’s dismissal of Civil Action No. 05-1283 precludes the present lawsuit. Assuming arguendo that the court’s decision in Civil Action 05-1283 does not have a preclusive effect on this case because it asserts new claims, the court would nevertheless dismiss the suit because plaintiff Kay Sieverding has already litigated her “claims for jailing” before Judge Nottingham. On October 5, 2005, plaintiff Kay Sieverding filed a motion in the Colorado action alleging obstruction of justice, conspiracy, intimidation, and threats with respect to the contempt proceedings. See Kay Sieverding’s Mot. for Special Prosecutor, Civil Action 05-1950 (Docket No. 609). Judge Nottingham denied the motion on October 18, 2005. Thus, plaintiff Kay Sieverding chose to challenge Judge Nottingham’s decision to hold her in contempt and lost. She may not have a second bite at the juridical apple by filing a complaint based on the same events in this court. Rumber v. Dist. of Columbia, 2005 WL 1903727, at *4 (D.D.C. July 19, 2005) (stating that once plaintiffs have taken “a first bite at the juridical apple,” they “cannot take a second bite simply because they do not like the result of their first”). Because the plaintiffs’ complaint in the instant case is barred by res judicata, the court declines to grant the plaintiffs relief from judgment. Accordingly, it is this 21st day of December, 2006, ORDERED that the plaintiffs’ motion for relief from judgment is DENIED; and it is FURTHER ORDERED that the plaintiffs are enjoined from filing any further" }, { "docid": "5034792", "title": "", "text": "been denied. See Sieverding v. Am. Bar Ass’n, 05-cv-1283, ECF Nos. 4, 76 & 79 (D.D.C.). With respect to the motion that the Court take “judicial notice of adjudicative fact under Rule 201(d)” that the Federal Regis ter does not contain, inter alia, any use of the phrases “civil bench warrant” or “civil contempt of court commitment,” the Court also denies the motion as moot, having disposed of all of Sieverding’s claims. The Sieverdings also move for a court order to have the DOJ “provide a list of the documents released to Plaintiffs in July 2007” pursuant to the Freedom of Information Act (“FOIA”), ECF No. 20. The DOJ asserts that it has no such list. See Opp’n to Motion for Court Order to Provide a List at 2; Declaration of William E. Bordley (“Bordley Decl.”) ¶ 7, ECF No. 23-1 (Aug. 15, 2011). Nor does the DOJ have an obligation to generate such a list. See Krohn v. Dep’t of Justice, 628 F.2d 195, 197-98 (D.C.Cir.1980). Hence, that motion will be denied. The motion for a more definite statement seeks “a court order requiring DOJ to answer the following questions.” See ECF No. 25. These questions are fashioned as interrogatories and include requests for admissions and for documents. However, the Court has not ordered discovery and finds no ambiguity from the DOJ’s filings at ECF Nos. 16, 21, 22, and 23 to make clarification necessary. Finally, the Court denies the “dispositive motion to impeach DOJ’s witnesses and counsel and find DOJ in default of damage claims for unauthorized possession of the Sieverdings’ First Amendment Records,” ECF No. 34, and the motion for hearing, to expedite, and to join the prior motion, ECF No. 35. The reliance on Rule 607 is inapplicable here, because there are no witnesses to impeach. To the extent that the motion raises issues relating to their FOIA requests and claims, that aspect of the motion is either premature or being resolved by another court, as the Sieverdings admit that they have previously filed FOIA actions raising the same types of arguments in the Eastern District" }, { "docid": "5034773", "title": "", "text": "I.A.M. Nat’l Pension Fund, 723 F.2d at 947). In other words, “ ‘claim preclusion forecloses all that which might have been litigated previously,’ while issue preclusion ‘prevents the relitigation of any issue that was raised and decided in a prior action.’ ” Sieverding II, 439 F.Supp.2d at 116. As in Sieverding V, this case is brought against the Department of Justice and the two suits clearly “share a common nucleus of facts.” Moreover, in Sieverding V the Sieverdings litigated their claim to a final judgment on the merits. See Sieverding V, 693 F.Supp.2d at 111 n. 17 (“The Sieverdings are advised that this is the final decision of the Court. Hence, they may appeal it.”); see also Order, 10-5149 (D.C. Cir. Oct. 20, 2010) (granting summary affirmance). Finally, the amended complaint here is based on the same series of events as the prior cases filed by the Sieverdings, and involves many of the same types of claims. For example, Sieverding once again complains about various Privacy Act violations based on information about her First Amendment activities purportedly kept in the Prisoner Tracking System (“PTS”), see Am. Compl. ¶¶ 46-54; Sieverding V, 693 F.Supp.2d at 105 (discussing same claims). These same claims based on records she already received from the PTS are barred. Sieverding also continues to make other claims related to her arrests and incarcerations, which occurred between 2005 and 2007. These would also appear to be barred. See Walker v. Seldman, 471 F.Supp.2d 106, 114 n. 12 (D.D.C.2007) (“[Cjourts may dismiss sua sponte when they are on notice that a claim had been previously decided because of the policy interest in avoiding unnecessary judicial waste.”) (citing Arizona v. California, 530 U.S. 392, 412, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000)). However, Sieverding’s claims insofar as they involve documents and information that she received after the resolution of Sieverding V would not be barred. Her current complaint and filings refer to documents she obtained in December 2010-after final judgment was entered in Sieverding V and, indeed, after October 2010, when the D.C. Circuit summarily affirmed the judgment. These records appear" }, { "docid": "5034772", "title": "", "text": "(D.C.Cir.1983). While generally pleaded as an affirmative defense in an answer, a res judicata argument can be raised in a motion to dismiss when the “relevant facts are shown by the court’s own records, of which the court takes notice.” Nader v. Democratic Nat’l Comm., 590 F.Supp.2d 164, 169 (D.D.C. 2008). Here, the arguments are made with respect to Sieverding V. Accordingly, it is entirely appropriate to consider the res judicata arguments in the context of a motion to dismiss. Res judicata is “usually parsed into claim preclusion and issue preclusion.” I.A.M. Nat’l Pension Fund, 723 F.2d at 946. Claim preclusion “prevents parties from relitigating issues they raised or could have raised in a prior action on the same claim.” NextWave Pers. Commc’ns, Inc. v. FCC, 254 F.3d 130, 143 (D.C.Cir. 2001). Under claim preclusion, “a final judgment on the merits in a prior suit precludes subsequent relitigation of issues actually litigated and determined in the prior suit, regardless of whether ... [they are] based on the same cause of action.” Id. at 147 (citing I.A.M. Nat’l Pension Fund, 723 F.2d at 947). In other words, “ ‘claim preclusion forecloses all that which might have been litigated previously,’ while issue preclusion ‘prevents the relitigation of any issue that was raised and decided in a prior action.’ ” Sieverding II, 439 F.Supp.2d at 116. As in Sieverding V, this case is brought against the Department of Justice and the two suits clearly “share a common nucleus of facts.” Moreover, in Sieverding V the Sieverdings litigated their claim to a final judgment on the merits. See Sieverding V, 693 F.Supp.2d at 111 n. 17 (“The Sieverdings are advised that this is the final decision of the Court. Hence, they may appeal it.”); see also Order, 10-5149 (D.C. Cir. Oct. 20, 2010) (granting summary affirmance). Finally, the amended complaint here is based on the same series of events as the prior cases filed by the Sieverdings, and involves many of the same types of claims. For example, Sieverding once again complains about various Privacy Act violations based on information about her First Amendment" } ]

[ { "docid": "22716459", "title": "", "text": "As we have noted, respondent’s only substantive claim, either before the District Court or in her administrative appeal, was that petitioners had violated the regulations promulgated by the Civil Service Commission. Those same regulations provided for an appeal to the agency which promulgated the regulations and further provided that until that appeal had been heard on the merits, the employer’s discharge of the employee was to remain in effect. Respondent, however, sought judicial intervention before fully utilizing the administrative scheme. The District Court, exercising its equitable powers, is bound to give serious weight to the obviously disruptive effect which the grant of the temporary relief awarded here was likely to have on the administrative process. When we couple with this consideration the historical denial of all equitable relief by the federal courts in cases such as White v. Berry, 171 U. S. 366 (1898), the well-established rule that the Government has traditionally been granted the widest latitude in the “dispatch of its own internal affairs,” Cafeteria Workers v. McElroy, 367 U. S. 886, 896 (1961), and the traditional unwillingness of courts of equity to enforce contracts for personal service either at the behest of the employer or of the employee, 5A A. Corbin, Contracts § 1204 (1964), we think that the Court of Appeals was quite wrong in routinely applying to this case the traditional standards governing more orthodox “stays.” See Virginia Petroleum Jobbers Assn. v. FPC, 104 U. S. App. D. C. 106, 259 F. 2d 921 (1958). Although we do not hold that Congress has wholly foreclosed the granting of preliminary injunctive relief in such cases, we do believe that respondent at the very least must make a showing of irreparable injury sufficient in kind and degree to override these factors cutting against the general availability of preliminary injunctions in Government personnel cases. We now turn to the showing made to the District Court on that issue, and to the Court of Appeals’ treatment of it. IY The Court of Appeals said in its opinion: “Without passing on the merits of Mrs. Murray’s contention that she will suffer" } ]

[ { "docid": "1709165", "title": "", "text": "cited by the majority is intended to provide judicially manageable standards that would allow review. The majority finds the \"reasonable possibility” standard to be a \"judicially manageable” one, and so I suppose it is, but that is not quite the point. The question is not whether we can manage it, but whether we should. That in turn would depend upon the intention underlying the regulation. Although the rule is said in one place to \"limit[ ] the discretion of the Administrator,\" 40 Fed.Reg. 42,013 (1975), much of its language seems purely descriptive. Most of the language is in the present tense and conspicuously lacks any mandatory word such as \"shall\" or \"will.” It reads much more like a discussion of how the agency works, intended for the information of outsiders, than it does like internal law. It is at least doubtful that it cabins the Administrator’s discretion sufficiently to give the courts \"law to apply.” . The majority expresses the fear that the Dun-lop exception could become “the 'Jaws’ of administrative law, gobbling up the usual APA rule that judicial review, even of informal, discretionary decisions, is based on the administrative record.\" Maj. op. at 812. This concern is unfounded. Congress has stated that in the typical case under the APA judicial review, is to be had on the record, see 5 U.S.C. § 706 (1982), just as in the typical case agency action is presumed to be subject to judicial review. Dunlop merely indicates that Congress retains the authority to express its intent, in the agency’s governing statute, that specific agency actions are to be reviewed on something less than the record as a whole, just as Congress retains the authority to indicate that other specific agency actions are not reviewable at all. Thus Dunlop simply recognizes, as we must, that Congress remains master of the field of administrative law, and is completely free, subject only to the broad limits imposed by the Constitution, to establish the substantive and procedural constraints under which an agency is to administer the law in its particular field, and which the courts are" }, { "docid": "15873393", "title": "", "text": "self-restraint, in my view, is really an impermissible exercise of judicial power: authorizing the continuance of an unlawful injunction without assuming the responsibility of justifying it. Refusing to decide the question presented, the majority purports to avoid reaching a constitutional issue. By allowing the injunction to continue, however, it has actually decided the question. Its position is not unlike permitting the execution of a prisoner while reserving the issue of whether capital punishment is constitutional. Perhaps the most important principle of judicial restraint governing the Anglo-American system is that judges are obliged to justify, in accordance with law, the exercise of — or the refusal to exercise — judicial power. This case does not come to us on review of an agency regulation. Indeed, despite the majority’s equating of the drug-testing program with a regulation, it was announced in a policy statement issued by the Attorney General, which was not issued as a declaration or interpretation of law. Accordingly, we are not reviewing the policy statement against administrative-law challenges. Appellees do not argue, for instance, that the policy statement was not adopted in accordance with proper procedures, that it is arbitrary and capricious because over- or under-inclusive, or that it is outside the Attorney General’s statutory authority. The statement is relevant only insofar as it manifests the undisputed intention of the Attorney General to test the named plaintiffs. For purposes of the lawsuit that intention could just as well have been demonstrated by a speech by the Attorney General. (The case would be ripe in that event because the threat to an arguable constitutional right would be undisputed.) The majority’s discussion of administrative-law principles is, therefore, quite irrelevant. Its reliance on SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1942), in particular, is totally misplaced. The Chenery doctrine — that a court reviewing an agency action will not entertain arguments not relied upon by the agency — is designed, as we have recently recognized, to prevent judicial usurpation of future agency adjudication or regulatory policymaking. See Women Involved in Farm Economics, 876 F.2d 994, 998-1000," }, { "docid": "22716504", "title": "", "text": "latter issue. I do not believe this makes for sound law. Since the majority persists in considering the merits of Mrs. Murray’s claim for injunctive relief, some additional comment is in order. I agree with the majority’s conclusion that Congress did not divest federal courts of their long-exercised authority to issue temporary injunctive relief pending the exhaustion of both administrative and judicial review of an employee’s claim of wrongful dismissal. I cannot accept, however, the way in which the majority opinion then proceeds to take away with the left hand what it has just given with the right, by precluding injunctive relief in all but so-called “extraordinary cases,” whatever they may be. At the outset, I see no basis for applying any different standards for granting equitable relief in the context of a discharged probationary employee than the long-recognized principles of equity applied in all other situations. See Virginia Petroleum Jobbers Assn. v. FPC, 104 U. S. App. D. C. 106, 259 F. 2d 921 (1958). Indeed, it appears that the factors which the majority would have courts weigh before granting injunctive relief are all encompassed within the traditional formulations. The adequacy of backpay as a remedy, for example, is relevant in determining whether the party seeking relief has shown that “without such relief, it will be irreparably injured.” Id., at 110, 259 F. 2d, at 925. Likewise, the possible disruptive effect which temporary injunctive relief might have on the office where respondent was employed or on the administrative review process itself relates to whether “the issuance of a stay [will] substantially harm other parties interested in the proceedings.” Ibid. However one articulates the standards for granting temporary injunctive relief, I take it to be well settled that a prerequisite for such relief is a demonstrated likelihood of irreparable injury for which there is no adequate legal remedy. But I cannot accept the majority’s apparent holding, buried deep in a footnote, that because of the Back Pay Act, a temporary loss in income can never support a finding of irreparable injury, no matter how severely it may affect a particular" }, { "docid": "19797084", "title": "", "text": "L.Ed.2d 166 (1974), the Supreme Court found that the showing by a probationary federal employee seeking to enjoin her discharge fell “far short” of the type of irreparable injury required to justify an injunction. Neither financial losses nor damage to reputation was found to constitute irreparable harm sufficient to support a preliminary injunction. At least when the plaintiff is a probationary employee, irreparable injury sufficient to justify an injunction will be found only in “extraordinary cases.” 415 U.S. at 92 n.68, 94 S.Ct. at 953 n.68. The plaintiff argues strenuously that Sampson applies only to probationary employees, and that tenured employees such as he need only meet the less stringent “traditional” standards of irreparable injury. It is true that some of the language in Sampson applies only to situations involving probationary employees, who have fewer procedural rights than permanent employees. 415 U.S. at 80-82, 94 S.Ct. at 948-49. Nevertheless, the Supreme Court was referring to all federal employee cases, not just those of probationary employees, when it wrote: The District Court, exercising its equitable powers, is bound to give serious weight to the obviously disruptive effect which the grant of the temporary relief awarded here was likely to have on the administrative process. When we couple with this consideration the historical denial of all equitable relief by the federal courts in cases such as White v. Berry, 171 U.S. 366, [18 S.Ct. 917, 43 L.Ed. 199] (1898), the well-established rule that the Government has traditionally been granted the widest latitude in the “dispatch of its own internal affairs,” Cafeteria Workers v. McElroy, 367 U.S. 886, 896, [81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230] (1961), and the traditional unwillingness of courts of equity to enforce contracts for personal service either at the behest of the employer or of the employee, 5A A. Corbin, Contracts § 1204 (1964), we think that the Court of Appeals was quite wrong in routinely applying to this case the traditional standards governing more orthodox “stays.” See Virginia Petroleum Jobbers Assn. v. FPC, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958). Although we do not hold that Congress" }, { "docid": "19837810", "title": "", "text": "an injunction preventing dismissal, of an employee who claimed termination based on political affiliation); Sawyer’s Case, 124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402 (1887) (holding that a court of equity had no jurisdiction over the appointment and removal of public officers). But, “much water has flowed over the dam” since those days, and in Sampson, the Court ruled that there were cases where preliminary injunctive relief would be available to government employees. Sampson, 415 U.S. at 80-81, 94 S.Ct. at 948-49. Nevertheless, the Sampson Court cautioned that: [t]he District Court, in exercising its equitable powers, is bound to give serious weight to the obviously disruptive effect which the grant of the temporary relief [is] likely to have on the administrative process. When we couple with this consideration the historical denial of all equitable relief by the federal courts in cases such as White v. Berry, the well-established rule that the Government has traditionally been granted the widest latitude in the ‘dispatch of its own internal affairs’ and the traditional unwillingness of courts of equity to enforce contracts for personal service either at the behest of the employer or of the employee, we think that the Court of Appeals was quite wrong in routinely applying to this case the traditional standards governing more orthodox ‘stays.’ Id. at 83-84, 94 S.Ct. at 949-50. Rather, the Court stated a plaintiff must “at the very least” make a showing of irreparable harm which could overcome, both in kind and by degree, the factors which weigh against preliminary injunctions in the government employment setting. Id. at 84, 94 S.Ct. at 950. In fact, Sampson requires an “extraordinary case” whose circumstances “so far depart from the normal ease” of injury to a discharged employee that the grant of injunctive relief would be appropriate. Id. at 92 n. 68, 94 S.Ct. at 953 n. 68. Insufficiency of savings or difficulty in obtaining employment “will not support a finding of irreparable injury, however severely they may affect a particular individual.” Id. Instead, it is the truly remarkable case which would give rise to the court’s equitable" }, { "docid": "7540940", "title": "", "text": "example of a $100 million congressional earmark to the Scottish Episcopal Church for ministers’ salaries, disbursed in full the day after its enactment. Because an injunction “would come too late to provide any relief to the complaining taxpayers” in this situation, the majority “cannot think of any reason why [restitutionary] relief should not be possible.” Maj. op. at 934. The hypothetical is far-fetched. Assuming such a flagrantly unconstitutional appropriation could escape notice during the entire Article I lawmaking process, any congressman or senator who voted for it would have some serious explaining to do in the next election cycle after it was discovered. The checks and balances of the ballot box are an effective disincentive against such unlikely and obvious congressional misuses of taxpayer money. Separation of powers requires the judicial branch to assume the general competence of Congress to enact laws that are constitutional. The law of taxpayer standing under Flast does not now encompass a restitutionary remedy against a private party in an Establishment Clause lawsuit. We need not create one as a hedge against congressional mischief of the sort described in the majority’s fanciful hypothetical. The test for mootness is not an invitation to explore the outer limits of the court’s creativity in fashioning a remedy. It is, rather, a practical legal inquiry: within the confines of the recognized causes of action and remedies for which the plaintiff has standing, can the court grant meaningful relief? Here, the answer is no. The majority has expanded taxpayer standing under Flast far beyond its existing boundaries and declared a form of relief that was not sought by the plaintiff taxpayers and is not appropriate in Establishment Clause cases. The expiration of the ACE grant moots this case in its entirety. I would affirm the district court’s order dismissing the lawsuit. . The majority responds that the Federal Rules of Civil Procedure generally permit the court to substitute other forms of relief for those originally sought in the pleadings. Maj. op. at 935. This misses the point. To repeat the chronology: the plaintiffs sued the Secretary of Education, not Notre" }, { "docid": "5858736", "title": "", "text": "action, did not establish the lack of authority necessary to permit injunction. The equivalent here is not whether these defendants are authorized to “make military acquisitions,” but whether they are authorized to conduct military training exercises abroad, with no specific limitation upon trespass or unlawful taking in the process. Ultimately, however, the majority’s response on the Tucker Act authorization issue is not contradiction but elegant agnosticism. That issue “is impossible for this court at this stage of the case to determine,” we are told, because the availability of a claim for relief under the Tucker Act “depends upon facts not yet ascertained and the nature of the congressional and constitutional grants of power to these defendants.” Maj. op. at 1524. But as to the latter, I have understood it to be precisely the function of this court to deter mine the law, and at least when the powers of cabinet-level officers are at issue no more is required to perform that task than a walk to the statutes and regulations and some hard thought. As to the former — the “facts not yet ascertained” — it escapes me what additional necessary facts there might be. The issue is not, of course, whether the facts can be established, but whether, assuming as true the same facts set forth in the initial portion of the majority opinion, a Tucker Act remedy would lie. There is no apparent reason why those facts are inadequate, other than a desire to keep this ease alive. Despite the plaintiffs’ pro forma attempt to cast their claim as something other than a taking, e.g., a “seizure,” Complaint, Count I, Ramirez de Ar-ellano v. Weinberger, Civil No. 83-2002 (D.D.C. filed July 13, 1983), there can be no doubt that the occupation of their land for use as a training camp and destruction of its economic utility is a taking. Assuming, as the plaintiffs allege, that this taking has been effected by the cabinet-level officers named as defendants, in order to establish and operate a training base for Salvadoran soldiers, all that remains to be determined for Tucker Act" }, { "docid": "15873384", "title": "", "text": "administrative law principles may also be relevant in addressing the claim that named plaintiffs alone should be protected by the injunction. When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated —not that their application to the individual petitioners is proscribed. . We see no reason that agency reformulation of its policy should cause undue delay, especially since the Department’s new testing criteria, as noted earlier, see supra n. 19, would not be subject to the notice-and-comment requirements of the Administrative Procedure Act. . It is possible that DOJ will argue on remand that the injunction should apply only to named plaintiffs, not to similarly-situated agency employees. See supra, n. 12. Though we do not foreclose this argument, we do note that nothing prevented the Department from advancing this contention on its initial appeal. If DOJ seeks on remand to attack the injunction on this basis, it must rebut the presumption that an argument not raised on an initial appeal will thereafter be deemed waived. See Northwestern Indiana Telephone Co., Inc. v. FCC, 872 F.2d 465, 470 (D.C.Cir.1989); Laffey v. Northwest Airlines, 740 F.2d 1071, 1089-90 (D.C.Cir.1984). SILBERMAN, Circuit Judge, concurring in part and dissenting in part: I. I agree with the majority that the Attorney General may constitutionally implement his drug-testing plan as applied to all employees who hold top security clearances. I also agree that employees covered by the plan because they have access to grand jury information unrelated to investigation or prosecution of drug offenses may not be tested. Virtually all government employees are privy to some confidential information, and if that factor were deemed sufficient to justify drug testing the Supreme Court in National Treasury Employees Union v. Von Raab, — U.S. -, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), would have adopted a broader rationale. We judges and lawyers tend to be particularly sensitive to the secrecy of grand jury proceedings, but with regard to the government’s interest in preserving confidentiality, it is hard for me to distinguish between a grand jury and, for instance, the" }, { "docid": "22716503", "title": "", "text": "the majority relies. See also Sims v. Greene, supra. In addition, the Government had other courses it could have taken in this case. In view of the District Court’s error in granting a restraining order of unlimited duration without complying with the requirements for a preliminary injunction, the Government could have moved the District Court to dissolve its order indefinitely continuing the temporary restraining order. Rule 65 (b) expressly provides for such a motion. Had the Government followed this course, the District Court could have corrected its error and gone on to resolve the issues presented by the application for a preliminary injunction. The end result would have been the grant or denial of a preliminary injunction, with findings of fact and conclusions of law, which we could meaningfully review. Here, instead, we find the Supreme Court determining that although the District Court had jurisdiction to grant injunctive relief, the equities of Mrs. Murray’s case did not support a preliminary injunction, when neither the District Court nor the Court of Appeals has yet confronted the latter issue. I do not believe this makes for sound law. Since the majority persists in considering the merits of Mrs. Murray’s claim for injunctive relief, some additional comment is in order. I agree with the majority’s conclusion that Congress did not divest federal courts of their long-exercised authority to issue temporary injunctive relief pending the exhaustion of both administrative and judicial review of an employee’s claim of wrongful dismissal. I cannot accept, however, the way in which the majority opinion then proceeds to take away with the left hand what it has just given with the right, by precluding injunctive relief in all but so-called “extraordinary cases,” whatever they may be. At the outset, I see no basis for applying any different standards for granting equitable relief in the context of a discharged probationary employee than the long-recognized principles of equity applied in all other situations. See Virginia Petroleum Jobbers Assn. v. FPC, 104 U. S. App. D. C. 106, 259 F. 2d 921 (1958). Indeed, it appears that the factors which the majority" }, { "docid": "16763245", "title": "", "text": "nexus between a positive drug test and the efficiency of the federal service, the Plan violates the CSRA. But as Von Raab makes clear, the government also has an interest in deterring illegal drug use within the workplace in addition to the elimination of on-duty impairment. 109 S.Ct. at 1395. Moreover, the question whether an employee has been properly disciplined under the Plan is a fact-specific inquiry, and an individual seeking to challenge an adverse personnel action “will have ample opportunity to have his grievance reviewed by the Merit Systems Protection Board and ultimately the United States Court of Appeals for the Federal Circuit.” NTEU v. Reagan, 685 F.Supp. 1346, 1355 (E.D.La.1988). Plaintiffs’ APA claim must also be rejected for, after raising it only in the complaint, plaintiffs never discussed it thereafter in their pleadings or at oral argument, leading to the conclusion that it had been abandoned. IX. REMEDY As noted above, the Court has found that random testing of automatic data processors (as currently proposed by DOE) violates the Constitution. Although there are 88 such individuals, AFGE has only eight members within this category, and thus the Court must determine whether to enjoin testing of all employees in this group or only those who are members of AFGE. In Harmon, the court of appeals did not reach the question whether its decision should be limited to named plaintiffs, since the agency had not challenged the injunction on that ground. Op. at 493 n. 12. But the majority gave strong indications that similarly-situated nonplaintiffs should also be covered. It was observed that, although the Harmon panel had earlier modified the district court’s injunction to allow testing of employees in categories that were not represented by named plaintiffs, it had not simultaneously limited the injunction only to named plaintiffs. Op. at 493 n. 12. The Harmon court also noted that, under “[traditional administrative law principles,” when a court declares agency regulations to be invalid, “the ordinary result is that the rules are vacated— not that their application to the individual petitioners is proscribed.” Id. at 495 n. 21. This Court" }, { "docid": "22595902", "title": "", "text": "appropriately balanced way.” 544 U.S. at 722, 125 S.Ct. 2113. But where the Supreme Court has said, “proceed with caution,” the majority has pressed the accelerator. Heedless of the deference due the expertise of prison administrators, heedless of basic principles of statutory interpretation, heedless even of the constitutional dangers of its approach, the majority has placed federal courts at the center of daily prison policy-making. In so doing, the majority may be undermining the very ideal of religious freedom that RLUIPA is meant to protect. The Supreme Court has counseled caution and deference precisely because, without them, religious accommodation in the penological context threatens to become the tail that wags the dog. Absent due restraint, “inmate requests for religious accommodations [may] become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution.” See Cutter, 544 U.S. at 726, 125 S.Ct. 2113. The Supreme Court has stated categorically that RLUI-PA does not license such excesses, and that, should they come to pass, “facilities] would be free to resist the imposition” by bringing as-applied constitutional challenges to RLUIPA. Id. In not granting due deference to prisons in cases like this one, the majority is virtually ensuring that prisons will, in turn, now have to seek their own day in court. Rather than remanding for further hearings on narrow tailoring, the valid policy at issue here should be upheld and Lovelace should be allowed to proceed against Lester in his claim for deliberate abuse of religious liberty. III. A. Because RLUIPA broadly defines “government” to include “any person acting under color of State law,” I agree that prison officials may be sued in their individual capacities. See 42 U.S.C. § 2000ce-5(4). But the availability of such suits says nothing about whether money damages — in addition to injunctive and declaratory relief — are “appropriate relief.” I do not, however, take up the question of money damages with respect to individual defendants because the majority expressly reserves that question. Maj. Op. at 195-196 n. 7. B. The majority also leaves open the question of whether RLUIPA imposes liability" }, { "docid": "15873397", "title": "", "text": "it applies to those who have top-secret clearance. Again, therefore, the majority necessarily acknowledges that we must dissolve the injunction insofar as it is unauthorized by law — whether or not we have been told that the Attorney General intends to implement his program to the extent that we permit. The injunction, in my view, must be further modified insofar as it prevents drug testing of those Justice Department employees who are engaged in the investigation and prosecution of drug cases. “[A] court does not abdicate its power to revoke or modify its mandate if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.” United States v. Swift & Co., 286 U.S. 106, 114-15, 52 S.Ct. 460, 462-463, 76 L.Ed. 999 (1932). Whether and how the Attorney General chooses to continue with the drug testing program — to the extent he legally can — is a policy matter for him to decide. But it is our responsibility to direct the district court to modify the injunction and thus to remove a judicial barrier which, in light of Von Raab, has proven to be improperly constructed. By so doing we would not even implicitly be suggesting that the Attorney General is obliged to test all employees that he may constitutionally test. As I have explained, we are not reviewing the “plan” to determine whether it is arbitrarily over- or under-inclusive. I therefore understand neither the majority’s suggestion that “DOJ, of course, remains free to promulgate new, narrower regulations,” Maj. op. at 495, nor its statement that “agency reformulation of its policy ... is the preferable next step,” id. at 495. It would appear that the majority wishes the Attorney General to take an administrative action that he is under no legal obligation to perform: restructuring his program in accordance with a constitutional standard the majority is unwilling to define. Furthermore, the majority suggests that the Attorney General’s constitutional obligation is to draw the program’s boundaries to encompass “federal prosecutors who could plainly be subjected to random testing.” Maj. op. at 493 (emphasis" }, { "docid": "789418", "title": "", "text": "employ private counsel to do the necessary investigative and legal work. It has, we think, always in the past been customary for a federal District Court to call upon the law officers of the United States for aid and advice, in comparable situations. As the Supreme Court said in Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 581, 66 S.Ct. 1176, 1179, 90 L.Ed. 1447, “After all, a federal court can always call on law officers of the United States to serve as amici * *. Amici selected by the court to vindicate its honor ordinarily ought not to be in the service of those having private interests in the outcome.” In our opinion, the status of the Attorney General and the United States Attorney was something more than that of mere amici curiae in private litigation. They were acting under the authority and direction of the court to take such action as was necessary to prevent its orders and judgments from being frustrated and to represent the public interest in the due administration of justice. It seems to us unnecessary to labor the point, since the plaintiffs in the Aaron case were, at the time of the hearing on September 20, 1957, still real parties in interest and they joined the Government in praying for the preliminary injunction which was granted and which we do not doubt the court had power to grant. We are satisfied that the District Court did not abuse its discretion in granting the preliminary injunction. See Shearman v. Missouri Pacific Railroad Co., 8 Cir., 250 F.2d 191, 195. Whether the District Court should have dismissed the petitions of the United States and the plaintiffs for injunctive relief, for failure to convene a three-judge District Court under 28 U.S.C. § 2281, is the next question for review. That section — which is headed “Injunction against enforcement of State statute; three-judge court required”— provides: “An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or" }, { "docid": "22787948", "title": "", "text": "date of an agency action if the Government could show . . . that delay would be detrimental to the public health or safety.” Experience dictates, on the contrary, that it can hardly be hoped that some federal judge somewhere will not be moved as the Court is here, by the cries of anguish and distress of those regulated, to grant a disruptive injunction. The difference between the majority and me in these cases is not with respect to the existence of jurisdiction to enjoin, but to the definition of occasions on which such jurisdiction may be invoked. I do not doubt that there is residual judicial power in some extreme and limited situations to enjoin administrative actions even in the absence of specific statutory provision where the agency has acted unconstitutionally or without jurisdiction — as distinguished from an allegedly erroneous action. But the Court’s opinions in No. 39 and No. 438 appear to proceed on the principle that, even where no consti tutional issues or questions of administrative jurisdiction or of arbitrary procedure are involved, exercise of judicial power to enjoin allegedly erroneous regulatory action is permissible unless Congress has explicitly prohibited it, provided only that the controversy is “ripe” for judicial determination. This is a rule that is novel in its breadth and destructive in its implications as illustrated by the present application. As will appear, I believe that this approach improperly and unwisely gives individual federal district judges a roving commission to halt the regulatory process, and to do so on the basis of abstractions and generalities instead of concrete fact situations, and that it impermissibly broadens the license of the courts to intervene in administrative action by means of a threshold suit for injunction rather than by the method provided by statute. The Administrative Procedure Act and fundamental principles of our jurisprudence insist that there must be some type of effective judicial review of final, substantive agency action which seriously affects personal or property rights. But, “[a] 11 constitutional questions aside, it is for Congress to determine how the rights which it creates shall be" }, { "docid": "15873400", "title": "", "text": "our drug problem — but that question is, of course, not for judges to decide. . To be sure, there may be close cases among the plaintiffs or those similarly situated to a plaintiff, see infra n. 3, but they are for the district court to resolve. . I do not think the injunction was properly extended to other than named plaintiffs. It is generally thought that nonparties may benefit from the granting of an injunction only \"if such breadth is necessary to give prevailing parties the relief to which they are entitled.” Bresgal v. Brock, 843 F.2d 1163, 1170-71 (9th Cir.1987). See also Professional Ass’n of College Educators v. El Paso County Community College District, 730 F.2d 258, 273-74 (5th Cir.), cert. denied, 469 U.S. 881, 105 S.Ct. 248, 83 L.Ed.2d 186 (1984); Zepeda v. United States I.N.S., 753 F.2d 719, 728 n. 1 (9th Cir.1983); id. at 733-34 (dissenting opinion); Gregory v. Litton Sys., Inc., 472 F.2d 631, 633-34 (9th Cir.1972). But see Soto-Lopez v. New York City Civil Service Comm'n, 840 F.2d 162, 168-69 (2d Cir.1988). And plaintiffs’ claim is that they have a constitutional right not to be tested, not that they are somehow injured by the Department’s testing of other employees. It is true, as the majority observes, Maj. op. at 496 n. 23, that the government did not challenge the scope of the injunction on appeal on the grounds that it extended beyond named plaintiffs. In light of the district court's broad view that the program was unconstitutional as applied to any employee, however, one can understand the Attorney General’s reluctance to perform testing of other than named plaintiffs until he gained a reversal of the district court’s declaration of constitutional law. After Von Raab the situation is quite different. Injunctions against the government are perfectly appropriate when necessary to prevent harm to specific individuals. But we ought not forget that an injunction is the most powerful civil order available to the judiciary and should not be used merely as a device to shape desirable administrative action. \"The District Court, exercising its equitable powers," }, { "docid": "15873392", "title": "", "text": "related bureaus and offices (including, of course, the Bureau of Prisons). The more difficult question for me is the permissibility of testing those employees in the criminal sections of other litigating divisions of the Department who are engaged in criminal investigation and prosecution, but never involved with drug-related crime. It could be argued that the government has a powerful interest in preventing drug use by all criminal-law-enforcement personnel, whether or not certain of such persons are ever involved in the fight against drug distribution. It might be thought that crime itself, like the law, is a seamless web. Still, I do not think Von Raab can be stretched that far, although I am by no means confident of that. I therefore concur in the majority’s refusal to authorize drug testing of employees (like those in the Antitrust or Civil Rights Division) who are not responsible for drug-related criminal investigations and prosecutions. II. I disagree, however, with the majority’s unwillingness to hold that drug warriors may be tested. What is characterized by the majority as judicial self-restraint, in my view, is really an impermissible exercise of judicial power: authorizing the continuance of an unlawful injunction without assuming the responsibility of justifying it. Refusing to decide the question presented, the majority purports to avoid reaching a constitutional issue. By allowing the injunction to continue, however, it has actually decided the question. Its position is not unlike permitting the execution of a prisoner while reserving the issue of whether capital punishment is constitutional. Perhaps the most important principle of judicial restraint governing the Anglo-American system is that judges are obliged to justify, in accordance with law, the exercise of — or the refusal to exercise — judicial power. This case does not come to us on review of an agency regulation. Indeed, despite the majority’s equating of the drug-testing program with a regulation, it was announced in a policy statement issued by the Attorney General, which was not issued as a declaration or interpretation of law. Accordingly, we are not reviewing the policy statement against administrative-law challenges. Appellees do not argue, for instance," }, { "docid": "15873401", "title": "", "text": "162, 168-69 (2d Cir.1988). And plaintiffs’ claim is that they have a constitutional right not to be tested, not that they are somehow injured by the Department’s testing of other employees. It is true, as the majority observes, Maj. op. at 496 n. 23, that the government did not challenge the scope of the injunction on appeal on the grounds that it extended beyond named plaintiffs. In light of the district court's broad view that the program was unconstitutional as applied to any employee, however, one can understand the Attorney General’s reluctance to perform testing of other than named plaintiffs until he gained a reversal of the district court’s declaration of constitutional law. After Von Raab the situation is quite different. Injunctions against the government are perfectly appropriate when necessary to prevent harm to specific individuals. But we ought not forget that an injunction is the most powerful civil order available to the judiciary and should not be used merely as a device to shape desirable administrative action. \"The District Court, exercising its equitable powers, is bound to give serious weight to the obviously disruptive effect which the grant of ... relief ... [i]s likely to have on the administrative process.” Sampson v. Murray, 415 U.S. 61, 83, 94 S.Ct. 937, 949, 39 L.Ed.2d 166 (1974). . Even were this a case properly analyzed as an administrative-law challenge, the majority is in error, for the Administrative Procedure Act requires that \"the reviewing court shall decide all relevant questions of law,” 5 U.S.C. § 706, something the majority is unwilling to do. . I take the majority, however, to leave the question open to the sound judgment of the district judge. Maj. op. at 495." }, { "docid": "22787963", "title": "", "text": "specific controversy, or in the district courts, or by injunction or declaratory judgment action. On the contrary, the clear intent was that the regulations, being to protect the consumer from unsafe, potentially harmful, and “misbranded” foods, drugs, devices, and cosmetics, were to be subject to challenge only by way of defense to enforcement proceedings. It was Congress’ judgment, after much controversy, that the special nature of the Act and its administration required this protection against delay and disruption. We should not arrogate to ourselves the power to override this judgment. Not a single case cited by the majority in which agency action was held reviewable arose against this kind of background of legislative hostility to threshold review in the district courts. The Court is in error, I submit, in its approach to this problem; and, as I shall attempt to show, it is in error in its decision that, even given this permissive approach to the use of judicial injunctive power, these controversies are “ripe” or appropriate for decision. II. I come then to the questions whether the review otherwise available under the statute is “adequate,” whether the controversies are “ripe” or appropriate for review in terms of the evaluation of the competing private and public interests. I discuss these together because the questions of adequacy and ripeness or appropriateness for review are interrelated. I again note that no constitutional issues are raised, and, indeed, no issues as to the authority of the agency to issue regulations of the general sort involved. The only issue is whether that authority was properly exercised. There is, of course, no abstract or mechanical method for determining the adequacy of review provisions. Where personal status or liberties are involved, the courts may well insist upon a considerable ease of challenging administrative orders or regulations. Cf. Rusk v. Cort, 369 U. S. 367 (1962); but cf. Heikkila v. Barber, 345 U. S. 229 (1953). But in situations where a regulatory scheme designed to protect the public is involved, this Court has held that postponement of the opportunity to obtain judicial relief in the interest of" }, { "docid": "15873398", "title": "", "text": "and thus to remove a judicial barrier which, in light of Von Raab, has proven to be improperly constructed. By so doing we would not even implicitly be suggesting that the Attorney General is obliged to test all employees that he may constitutionally test. As I have explained, we are not reviewing the “plan” to determine whether it is arbitrarily over- or under-inclusive. I therefore understand neither the majority’s suggestion that “DOJ, of course, remains free to promulgate new, narrower regulations,” Maj. op. at 495, nor its statement that “agency reformulation of its policy ... is the preferable next step,” id. at 495. It would appear that the majority wishes the Attorney General to take an administrative action that he is under no legal obligation to perform: restructuring his program in accordance with a constitutional standard the majority is unwilling to define. Furthermore, the majority suggests that the Attorney General’s constitutional obligation is to draw the program’s boundaries to encompass “federal prosecutors who could plainly be subjected to random testing.” Maj. op. at 493 (emphasis added). Such a formulation implies that doubtful cases are to be resolved against the constitutionality of testing. I am aware of no legal authority that supports this proposition. That there may be close cases is all the more reason for the district court to follow governing law and consider those situations only insofar as named plaintiffs present them. See supra n. 3. * * * * * * The majority’s opinion, at the very least, delays drug testing it is unwilling to declare unconstitutional. If the Executive Branch — presumably supported by Congress — is conducting a war against drugs, the majority’s position, vis-a-vis the Executive Branch, strikes me as a form of judicial guerrilla warfare: placing a maximum number of impediments in the way of the Justice Department’s program at minimum risk of Supreme Court review. With all due respect to my colleagues, I believe the approach they have adopted is an abuse of judicial power. . I confess to grave doubts that the criminal law is the most effective way of dealing with" }, { "docid": "22787962", "title": "", "text": "by Congress final agency action of the sorts involved here must be reviewable at some stage, and it recognizes that such review must be “adequate.” It merely presents the question in these cases. It does not supply an answer. Certainly, it would be revolutionary doctrine that the Administrative Procedure Act authorizes threshold suits for injunction even where another and adequate review provision is available. The Court refers to the Administrative Procedure Act as “seminal.” It is, in a real sense; but its seed may not produce the lush, tropical jungle of the doctrine that the Court will permit agency action to be attacked in limine by suit for injunction or declaratory action unless Congress expressly prohibits review of regulatory action. See 3 Davis, Administrative Law Treatise § 22.08 (1958). I submit that if we are to judge and not to legislate policy, we should implement and not contradict the program laid out by the Congress. Congress did not intend that the regulations at issue in this case might be challenged in gross, apart from a specific controversy, or in the district courts, or by injunction or declaratory judgment action. On the contrary, the clear intent was that the regulations, being to protect the consumer from unsafe, potentially harmful, and “misbranded” foods, drugs, devices, and cosmetics, were to be subject to challenge only by way of defense to enforcement proceedings. It was Congress’ judgment, after much controversy, that the special nature of the Act and its administration required this protection against delay and disruption. We should not arrogate to ourselves the power to override this judgment. Not a single case cited by the majority in which agency action was held reviewable arose against this kind of background of legislative hostility to threshold review in the district courts. The Court is in error, I submit, in its approach to this problem; and, as I shall attempt to show, it is in error in its decision that, even given this permissive approach to the use of judicial injunctive power, these controversies are “ripe” or appropriate for decision. II. I come then to the" } ]

[ { "docid": "4264774", "title": "", "text": "the defendant to permit the plaintiff to change strategies at that late stage of litigation. The district court did not abuse it discretion by enforcing the pretrial order. Because we uphold the enforcement of the pretrial order, we do not reach the issue of whether the CPUC decision approving the ATT-Pacific merger collaterally estopped Eagle from raising the tax liability theory. AFFIRMED. . Even though no class certification has yet been sought, we assume for purposes of determining whether the district court had jurisdiction that this suit is a class action. City of Ingelwood v. City of Los Angeles, 451 F.2d 948, 951 (9th Cir.1971). . Wé note that Eagle's complaint prays for $38 million in damages or ten percent of the refund alleged to have injured Pacific. The class Eagle purports to represent owned approximately ten percent of Pacific’s stock when the complaint was filed. Individual shareholder suits are not usually permitted when the shareholders share a common injury to their stock. 12B Fletcher Cyclopedia Of The Law Of Private Corporations § 5913 (1984). Eagle’s prayer for relief indicates that all of Pacific’s shareholders suffered a common injury, divisible in proportion to their ownership of Pacific stock. . In Snyder, the Supreme Court preserved the character of interest analysis developed before the 1966 revision of Rule 23 of the Federal Rules of Civil Procedure to distinguish between spurious and true class actions. Claims of individual class members could only be aggregated in true class actions. 14B C. Wright, A. Miller, E. Cooper Federal Practice And Procedure § 3705 (1985). . The shareholders intended division of the $38 million fund pro rata does not make their claims separate and distinct. It is proper to aggregate the value of jointly held rights when \"several plaintiffs sue to enforce a common and undivided interest which is separate and distinct as between themselves.” 1 Moore's Federal Practice § 0.97[3] at 962 (1984). . We reject Eagle's argument in his brief that there is a material issue of fact for trial on whether Eagle was damaged. . We note that Eagle virtually abandoned this" } ]

[ { "docid": "23505654", "title": "", "text": "establish the minimum amount of controversy in a multiplaintiff case than in a much smaller single-plaintiff ease.” In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 609 (7th Cir.1997). In Snow, we acknowledged the inherent conflict between the “either viewpoint” rule and the non-aggregation rule when calculating the amount in controversy in class action suits seeking equitable relief, and determined that the former must yield. Snow, 561 F.2d at 788-91. In light of the Supreme Court’s decisions in Snyder v. Harris, 394 U.S. 832, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969) and Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), prohibiting aggregation, we declined to apply Ridder in a class action suit seeking damages and in-junctive relief, stating that “[in class actions,] the threshold question is aggregation, and it must be resolved affirmatively before total detriment [to the defendant] can be considered.” Id. at 790. Otherwise, the principle of Snyder and Zahn would be subverted, i.e., plaintiffs with minimal damages could dodge the non-aggregation rule by praying for an injunction. See id. at 791. We recognized that ‘“[t]otal detriment’ is basically the same thing as aggregation,” and held that “where the equitable relief sought is but a means through which the individual claims may be satisfied, the ban on aggregation applies with equal force to the equitable as well as the monetary relief.” Id. at 790 (internal quotation omitted). Thus, under Snow, “the proper focus [in multiple plaintiff cases] is not influenced by the type of relief requested, but rather ... depend[s] upon the nature and value of the right asserted.” Id. Put differently, “[w]hatever the form of relief sought, each plaintiffs claim must be held separate from each other plaintiffs claim from both the plaintiffs and the defendant’s standpoint. The defendant in such a case is deemed to face multiple claims for injunctive relief, each of which must be separately evaluated.” Brand Name, 123 F.3d at 610, citing Snow, 561 F.2d at 790. The question then becomes whether each plaintiff is asserting an individual right or, rather, together the plaintiffs" }, { "docid": "11169471", "title": "", "text": "equitable as well as the monetary relief.” Snow, 561 F.2d at 790 (quoting Barton Chemical Corporation v. Avis Rent A Car Sys., Inc., 402 F.Supp. 1195, 1198 (N.D.Ill.1975). “To our knowledge,” intoned the court in Snow, “every court that has addressed this conflict in the context of a Rule 23(b)(3) class action involving separate and distinct claims .has resolved it in favor of Snyder” and against the aggregation of the cost of complying with the class’ requested equitable relief. Citibank argues, however, that the plaintiffs requested injunctive relief is distinguishable from that sought by the plaintiff class in Snow because the injunction sought by Smiley would benefit all California con sumers, not just those who are already Citibank cardholders or who have already been damaged by Citibank’s practices. Smiley’s complaint seeks an affirmative injunction requiring Citibank to provide a statewide advertising and public information campaign warning all California residents — including those outsidé of the putative class — of the purported “illegality and unconseionability” of Citibank’s late payment charges. Citibank argues that the Court should aggregate the value of this remedial injunctive relief because (1) it will bestow a common and undivided benefit on, all current or potential Citibank credit card holders, regardless of whether they have been harmed by Citibank’s benefits thus far; and (2) because Smiley could have brought this claim for relief as an individual plaintiff, purely on her own behalf, in which ease the court would look to the cost to the defendant in determining the proper amount in controversy. The Court rejects both of these arguments for the reasons discussed below. Citibank argues that this case is distinguishable from Snow because in that case, the court found that the equitable relief sought by Ford was simply a means of satisfying the individual $11 claims of future purchasers of Ford’s trailer connecting kit. The right asserted by plaintiffs is the right of individual future consumers to be protected from Ford’s allegedly deceptive advertising which is said to injure them in the amount of $11.00 each, that figure is far below the jurisdictional minimum. Snow, 561 F.2d" }, { "docid": "23209565", "title": "", "text": "order to meet the amount-in-controversy requirement. We explained that in class actions, use of the defendant’s-viewpoint approach was “basically the same as aggregation.” Snow, 561 F.2d at 790. Therefore, in class actions asserting the “separate and distinct” claims of class members, as opposed to claims that are the “common and undivided” right of the class, the defendant’s-viewpoint approach was inappropriate. Although the injunction sought in Snoiv would have affected thousands of future sales and would have cost Ford more than $10,000, we held that where the equitable relief sought is but a means through which the individual claims may be satisfied, the ban on aggregation applies with equal force to the equitable as well as the monetary relief. ... Given Snyder, the proper focus ... is not influenced by the type of relief requested, but rather continues to depend upon the nature and value of the right asserted. The right asserted by plaintiffs is the right of individual future consumers to be protected from Ford’s allegedly deceptive advertising which is said to injure them in the amount of $11.00 each. That figure is far below the jurisdictional minimum. Id. at 790-91 (citations omitted, footnote omitted). Like the Snow plaintiffs, Plaintiffs in this case seek an injunction preventing Defendants from advertising and selling a defective product to them. In Snow, the product allegedly was incomplete; in this case, the product allegedly does not work. In Snow, the value to each plaintiff of the right not to be deceived by Ford’s advertising was the cost of the wiring harness Ford failed to provide-a little over $10; in this case, the value of that right is the cost of the allegedly ineffective medication-between $9 and $17. We recognize that the cases are not precisely analogous. In Snow, Ford could have complied with the requested injunction on a plaintiff-by-plaintiff basis, whereas in this case it would be more difficult for Pfizer to do so. That is, Ford could have handed out wiring harnesses to each future individual purchaser of a trailering kit, while Pfizer cannot easily stop selling or advertising its lice medication one" }, { "docid": "17160834", "title": "", "text": "As the Seventh Circuit stated in an analogous context involving the question of whether defendant drug companies could continue to charge what the plaintiffs alleged was an illegal price for certain prescription products: Whatever the form of relief sought, each plaintiffs claim must be held separate from each other plaintiffs claim from both the plaintiffs and the defendant’s standpoint. The defendant in such a ease is deemed to face multiple claims for injunc-tive relief, each of which must be separately evaluated. The question then becomes ... whether each plaintiff is asserting an individual right or, rather, a right to an undivided interest in something. In this case it is the former. Each plaintiff has a right to be free from the indirect effects of collusive pricing. In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 610 (7th Cir.1997) (citation omitted). In writing for the Seventh Circuit, Judge Posner emphasized that “[t]he test, we repeat, is the cost to each defendant of an injunction running in favor of one plaintiff; otherwise, the nonaggregation rule would be violated.” Id.. This prohibition on aggregating claims for prospective injunctive relief in class actions has been followed by numerous other courts. See, e.g., Crosby v. America Online, Inc., 967 F.Supp. 257, 265 (N.D.Ohio 1997) (finding that purported cost to defendant to change its Internet business practices did not satisfy jurisdictional minimum since appropriate methodology for court’s calculation of amount in controversy was to. prorate cost of injunction across the total numbers of plaintiffs). In the seminal case of Snow v. Ford Motor Co., 561 F.2d 787 (9th Cir.1977), for instance, the Ninth Circuit rejected the defendant’s argument that federal jurisdiction existed on the basis that the plaintiffs requested injunction-which would have barred the defendant automobile manufacturer from continuing to sell a kit to connect a trailer to a vehicle without including in that kit $11 worth of wiring to connect the trailer lights to the vehicle’s electrical system-would have cost the defendant in excess of the minimum jurisdictional amount if the injunction were granted. In doing so, the Ninth Circuit used language that" }, { "docid": "23505653", "title": "", "text": "jurisdiction [is] satisfied.” 142 F.2d at 398. We did not apply Ridder in Sanchez, however, because the party with the burden of proof failed to provide any evidence to determine the extent of the loss that it would incur by an injunction. But Ridder and Sanchez are single-plaintiff cases. Here, there are multiple plaintiffs seeking to sue on behalf of a putative class of six million individuals. We have specifically declined to extend the “either viewpoint rule” to class action suits. See Snow v. Ford Motor Co., 561 F.2d 787, 790 (9th Cir.1977). This limitation on the rule should apply regardless of whether the requested class has been certified. Indeed, logic would dictate that it should apply to all multi-party complaints. While “[i]t may seem paradoxical to [decline jurisdiction] in the multiplain-tiff setting,” where the potential loss to defendants typically is well beyond the jurisdictional amount threshold, “it is implicit in the rule that forbids aggregation of class members’ separate claims that it will sometimes be more difficult for a [party asserting federal jurisdiction] to establish the minimum amount of controversy in a multiplaintiff case than in a much smaller single-plaintiff ease.” In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 609 (7th Cir.1997). In Snow, we acknowledged the inherent conflict between the “either viewpoint” rule and the non-aggregation rule when calculating the amount in controversy in class action suits seeking equitable relief, and determined that the former must yield. Snow, 561 F.2d at 788-91. In light of the Supreme Court’s decisions in Snyder v. Harris, 394 U.S. 832, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969) and Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), prohibiting aggregation, we declined to apply Ridder in a class action suit seeking damages and in-junctive relief, stating that “[in class actions,] the threshold question is aggregation, and it must be resolved affirmatively before total detriment [to the defendant] can be considered.” Id. at 790. Otherwise, the principle of Snyder and Zahn would be subverted, i.e., plaintiffs with minimal damages could dodge the non-aggregation rule by" }, { "docid": "23209568", "title": "", "text": "calculating the cost of an injunction. Pfizer attempts to distinguish Snoiv by relying on the Seventh Circuit’s opinion in In re Brand Name Prescription Drugs Antitrust Litigation, 123 F.3d 599 (7th Cir.1997) (“Brand Name ”), a class action in which drug consumers sought to enjoin allegedly collusive sales practices by pharmaceutical companies. We do not find Pfizer’s reliance on Brand Name persuasive. Brand Name did propose valuing injunctive relief by examining “the cost to each defendant of an injunction running in favor of one plaintiff,” but it did so in dictum and without the issue having been argued to the court. Id. at 609. More important, Brand Name still applied the core inquiry of Snyder, asking “whether each plaintiff is asserting an individual right or, rather, a right to an undivided interest in something,” and noted that because each individual plaintiff had “a right to be free from the indirect effects of collusive pricing,” the case involved individual rights rather than an undivided right. Id. at 610. Even if Snow were not controlling authority, we would be reluctant to allow a request for injunctive relief to provide the basis for federal jurisdiction in a case, such as this one, where that relief does not appear to be the primary object of the litigation. In this case Plaintiffs seek monetary compensation for consumers who relied on Defendants’ misleading advertising. We recognize that Plaintiffs also ask the court to enjoin Pfizer and its co-defendants from selling their anti-lice products in ineffective formulations, or from advertising their products as effective. But if Plaintiffs succeed in obtaining a significant award of monetary damages, they will likely accomplish what we believe to be their essential goal in this litigation without the added spur of an injunction. See Packard v. Provident Nat. Bank, 994 F.2d 1039, 1050 (3d Cir.1993). We therefore distinguish this case from those in which it is apparent that injunctive relief is the primary relief sought. Such actions are properly brought under Rule 23(b)(2), which allows class actions where the party opposing the class has acted or refused to act on grounds generally" }, { "docid": "19342477", "title": "", "text": "118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). As such, neither footnote aids CE. As for out-of-circuit cases cited by CE, two of them — In re Brand Name Prescription Drugs Antitrust Litigation, 123 F.3d 599 (7th Cir.1997), and In re Ford Motor Co./Citibank (South Dakota), N.A, 264 F.3d 952 (9th Cir.2001) — actually weaken its argument. In these cases, both courts adamantly maintained that the non-aggregation rule could not be ignored simply by applying a defendant-viewpoint approach. The court in In re Brand Name — which involved consolidated class actions seeking, inter alia, injunctive relief — held that a defendant’s cost to comply with each plaintiffs claim for injunctive relief could not be aggregated to satisfy the amount-in-controversy requirement, expressly emphasizing that “[w]hatever the form of relief sought, each plaintiffs claim must be held separate from each other plaintiffs claim from both the plaintiffs and the defendant’s standpoint. The defendant in such a case is deemed to face multiple claims for injunctive relief, each of which must be separately evaluated.” 123 F.3d at 610 (citing Snow v. Ford Motor Co., 561 F.2d 787, 790 (9th Cir.1977)). Likewise, in In re Ford Motor Co. — which involved multiple plaintiffs seeking to sue on behalf of six million putative class members — the court stressed that the “either viewpoint rule” does not extend to class action suits (regardless of whether the class has been certified) and that “logic would dictate that it should [also not extend to] multiparty complaints,” noting [w]hile it may seem paradoxical to decline jurisdiction in the multiplaintiff setting, where the potential loss to defendants typically is well beyond the jurisdictional amount threshold, it is implicit in the rule that forbids aggregation of class members’ separate claims that it will sometimes be more difficult for a party asserting federal jurisdiction to establish the minimum amount of controversy in a multiplain-tiff case than in a much smaller single-plaintiff case. 264 F.3d at 958 (alterations omitted) (internal quotation marks omitted). The court explained that in these cases the “either viewpoint” rule must yield to the non-aggregation rule, inasmuch as aggregation is" }, { "docid": "23505655", "title": "", "text": "praying for an injunction. See id. at 791. We recognized that ‘“[t]otal detriment’ is basically the same thing as aggregation,” and held that “where the equitable relief sought is but a means through which the individual claims may be satisfied, the ban on aggregation applies with equal force to the equitable as well as the monetary relief.” Id. at 790 (internal quotation omitted). Thus, under Snow, “the proper focus [in multiple plaintiff cases] is not influenced by the type of relief requested, but rather ... depend[s] upon the nature and value of the right asserted.” Id. Put differently, “[w]hatever the form of relief sought, each plaintiffs claim must be held separate from each other plaintiffs claim from both the plaintiffs and the defendant’s standpoint. The defendant in such a case is deemed to face multiple claims for injunctive relief, each of which must be separately evaluated.” Brand Name, 123 F.3d at 610, citing Snow, 561 F.2d at 790. The question then becomes whether each plaintiff is asserting an individual right or, rather, together the plaintiffs “unite to enforce a single title or right in which they have a common and undivided interest.” Snyder, 394 U.S. at 335, 89 S.Ct. 1053. If it is the latter, we may then look to the “either viewpoint” rule to determine jurisdiction. If it is the former, the test is the cost to the defendants of an injunction running in favor of one plaintiff. See Brand Name, 123 F.3d at 610. In an effort to carry this ease across the amount in controversy threshold in the face of Snow, Ford and Citibank first contend that the consolidated plaintiffs have a “common and undivided interest” in the injunctive relief they seek, and compliance will cost substantially more than $75,000. Second, they aver that it will cost them more than $75,000 to reinstate and administer the rebate accrual program whether it is done for one plaintiff or six million. Thus, they allege that the “either viewpoint” rule may be applied in this case without running afoul of the non-aggregation principle of Snyder and Zahn. 1. Turning to" }, { "docid": "17160833", "title": "", "text": "the petitioning plaintiffs, the claim is both ‘common’ (all sue by virtue of a like right) and ‘undivided’ (the suitors make no specific claims for individual allocation of the fund).” Id. Indeed, the Second Circuit has referred to this as the “common fund” exception. Gilman, 104 F.3d at 1422. Thus, “the ‘paradigm cases’ allowing aggregation of claims ‘are those which involve a single indivisible res, such as an estate, a piece of property (the classic example), or an insurance policy. These are matters that cannot be adjudicated without implicating the rights of everyone involved in the res.’” Id. (quoting Bishop v. General Motors Corp., 925 F.Supp. 294, 298 (D.N.J.1996)). Clearly, this is not such a “paradigm case.” Second, regardless of the merits of the foregoing general framework, we find that the particular facts present here counsel against treating the value of the injunctive relief as a single, integrated unit. That is, on these facts, aggregating the proposed injunc-tive relief is inappropriate, just as it would be inappropriate to aggregate the Plaintiffs claims for compensatory damages. As the Seventh Circuit stated in an analogous context involving the question of whether defendant drug companies could continue to charge what the plaintiffs alleged was an illegal price for certain prescription products: Whatever the form of relief sought, each plaintiffs claim must be held separate from each other plaintiffs claim from both the plaintiffs and the defendant’s standpoint. The defendant in such a ease is deemed to face multiple claims for injunc-tive relief, each of which must be separately evaluated. The question then becomes ... whether each plaintiff is asserting an individual right or, rather, a right to an undivided interest in something. In this case it is the former. Each plaintiff has a right to be free from the indirect effects of collusive pricing. In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 610 (7th Cir.1997) (citation omitted). In writing for the Seventh Circuit, Judge Posner emphasized that “[t]he test, we repeat, is the cost to each defendant of an injunction running in favor of one plaintiff; otherwise, the nonaggregation rule" }, { "docid": "8126329", "title": "", "text": "following manner: Whatever the form of relief sought, each plaintiffs claim must be held separate from each other plaintiffs claim from both the plaintiffs and the defendant’s standpoint. The defendant in such a case is deemed to face multiple claims for injunctive relief, each of which must be separately evaluated. The question then becomes ... whether each plaintiff is asserting an individual right or, rather, a right to an undivided interest in something. [When it is the former,] [t]he test, we repeat, is the cost to each defendant of an injunction running in favor of one plaintiff; otherwise the no-naggregation rule would be violated. In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 609 (7th Cir.1997) (internal citation omitted). Because the Fourth Circuit has not carved out any exception to the “either-viewpoint” rule for class actions or other multiple-plaintiff cases, this court adopts the Seventh Circuit’s approach in Brand Name, which best reconciles the “either-viewpoint” rule with the non-aggregation rule established in Zahn, Here, Allstate attached to its Notice of Removal an affidavit from Tom DiNardo, its Auto Claims Process Specialist, alleging that it would cost Allstate more than $75,000 to comply with this request for declaratory and injunctive relief. Specifically, DiNardo averred that, if plaintiffs’ requests for declaratory and injunctive relief were granted, Allstate would be required to hire new claims adjusters to pay diminished value claims and develop procedures and systems with regard to such claims. The DiNardo affidavit does not show that Allstate would incur such costs if an injunction were issued in favor of one plaintiff rather than an entire class. Rather, Allstate would incur the administrative costs identified by DiNardo only if an injunction were issued in favor of the entire proposed class. In other words, the named plaintiffs are seeking to bring this action on behalf of all Allstate policyholders enjoining Allstate from refusing to pay diminished value payments in the future. If such a class action were certified and were successful, perhaps Allstate would be required to change its claims processing system and hire new claims adjusters. However, Allstate has not" }, { "docid": "23209563", "title": "", "text": "to “prevailing party”). However, Pfizer raises one argument not considered in Gibson. It contends that the value of injunctive relief sought by Plaintiffs should be determined by calculating the cost to Defendants of providing the relief requested by the class and then treating that entire cost as the amount in controversy. Put another way, Pfizer wants us to assume for purposes of amount in controversy that a single plaintiff seeks the injunctive relief requested by Plaintiffs, and to allocate the cost to Defendants of providing the requested injunctive relief to that one plaintiff. Pfizer contends that if we were to view Plaintiffs’ ease in this way, the amount in controversy would exceed $75,000. The district court believed that Pfizer’s argument is foreclosed by Snow v. Ford Motor Co., 561 F.2d at 787. We agree. The named plaintiff in Snow brought a class action in state court, alleging that defendant Ford Motor Company (“Ford”) had sold “trailering packages” for its vehicles that did not include a necessary wiring harness, despite specific advertising statements to the contrary. The named plaintiff sought, on behalf of a class, actual damages of $11.00 per class member, punitive damages, and an order “enjoin[ing] Ford from continuing to sell the trailering special packages without a wiring connector kit.” Id. at 788. Ford removed to federal district court based on diversity. It argued that the plaintiffs complaint satisfied the amount-in-controversy requirement because the cost to Ford of complying with the injunction would exceed $10,000 (the jurisdictional amount at that time). Snow recognized that in some non-class actions we had calculated the value of in-junctive relief for purposes of amount in controversy by examining the cost of the injunction to the defendant. See id. at 788-89 (citing Ridder Bros., Inc. v. Blethen, 142 F.2d 395, 398-99 (9th Cir.1944)). We observed, however, that this defendant’s-viewpoint approach could not be applied to class actions without undermining Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), in which the Supreme Court had held that class action plaintiffs cannot aggregate the amounts of their “separate and distinct” claims in" }, { "docid": "23209564", "title": "", "text": "The named plaintiff sought, on behalf of a class, actual damages of $11.00 per class member, punitive damages, and an order “enjoin[ing] Ford from continuing to sell the trailering special packages without a wiring connector kit.” Id. at 788. Ford removed to federal district court based on diversity. It argued that the plaintiffs complaint satisfied the amount-in-controversy requirement because the cost to Ford of complying with the injunction would exceed $10,000 (the jurisdictional amount at that time). Snow recognized that in some non-class actions we had calculated the value of in-junctive relief for purposes of amount in controversy by examining the cost of the injunction to the defendant. See id. at 788-89 (citing Ridder Bros., Inc. v. Blethen, 142 F.2d 395, 398-99 (9th Cir.1944)). We observed, however, that this defendant’s-viewpoint approach could not be applied to class actions without undermining Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), in which the Supreme Court had held that class action plaintiffs cannot aggregate the amounts of their “separate and distinct” claims in order to meet the amount-in-controversy requirement. We explained that in class actions, use of the defendant’s-viewpoint approach was “basically the same as aggregation.” Snow, 561 F.2d at 790. Therefore, in class actions asserting the “separate and distinct” claims of class members, as opposed to claims that are the “common and undivided” right of the class, the defendant’s-viewpoint approach was inappropriate. Although the injunction sought in Snoiv would have affected thousands of future sales and would have cost Ford more than $10,000, we held that where the equitable relief sought is but a means through which the individual claims may be satisfied, the ban on aggregation applies with equal force to the equitable as well as the monetary relief. ... Given Snyder, the proper focus ... is not influenced by the type of relief requested, but rather continues to depend upon the nature and value of the right asserted. The right asserted by plaintiffs is the right of individual future consumers to be protected from Ford’s allegedly deceptive advertising which is said to injure them in" }, { "docid": "12754827", "title": "", "text": "151 F.2d 743 (3d Cir.1945), cert. denied, 327 U.S. 779, 66 S.Ct. 530, 90 L.Ed. 1007 (1946)); accord, Comprehensive Group Health Services Board of Directors v. Temple University, 363 F.Supp. 1069, 1094 (E.D.Pa.1973); Northeastern Pennsylvania National Bank and Trust Co. v. Sandvick Steel, Inc., 325 F.Supp. 651, 654 (M.D.Pa.1971). The ninth circuit has considered an injunc-tive claim similar to the one made by plaintiffs in the instant ease. In Snow v. Ford Motor Co., 561 F.2d 787 (9th Cir.1977), a group of consumers sued Ford for damages and injunctive relief for falsely advertising “trailering special packages” that did not contain wiring kits to connect the trailer’s electrical system to that of the towing vehicle. Id., 561 F.2d at 788. The ninth circuit found that “[t]he right asserted by plaintiffs is the right of individual future consumers to be protected from Ford’s allegedly deceptive advertising which is said to injure them in the amount of $11.00 each.” Snow, 561 F.2d at 790-91. Therefore, the jurisdictional minimum was not met. Were it to decide otherwise, the court proclaimed, “All that plaintiffs would need to do to avoid the [non-aggregation] rule of Snyder and Zahn would be to pray for an injunction.” Snow, 561 F.2d at 791. Similarly here, the object sought by each putative plaintiff is to be free from deceptive advertising. To allow the amount in controversy to be measured by the cost to the defendant of complying with requested in-junctive relief would be the same as allowing aggregation of the plaintiffs claims. See Snow, 561 F.2d at 790. Because we have already determined that the claims in this case are not common and undivided, aggregation will not be allowed, and the value of the requested injunctive relief must be calculated from the point of view of each member of the putative class. III. CONCLUSION The “common and undivided” interest test used to determine whether or not to aggregate multiple plaintiffs’ claims for jurisdictional purposes has been described by commentators and courts as “mystifying,” Charles A. Wright, Law of Federal Courts § 36 at 196 (4th ed. 1983) (quoting Aetna Casualty" }, { "docid": "6341277", "title": "", "text": "49 (2d Cir.), cert. denied, 409 U.S. 983, 93 S.Ct. 324, 34 L.Ed.2d 248 (1972); Alfonso v. Hillsborough County Aviation Authority, 308 F.2d 724, 726-727 (5th Cir.1962). Other circuits seem to apply the plaintiff-viewpoint rule in limited circumstances such as certain class action lawsuits. See Snow v. Ford Motor Company, 561 F.2d 787, 790-791 (9th Cir.1977); Massachusetts State Pharmaceutical Association v. Federal Prescription Service, Inc., 431 F.2d 130, 132 (8th Cir.1970). . In regard to the $45,000 amount, two matters need to be pointed out. First, because the parties have not raised the issue, the Court is making the assumption that if the injunction is valued at $45,000, this will not decrease the $30,000 amount claimed in damages, either by reducing future damages or punitive damages. Second, the Supreme Court’s non-aggregation rules require that the amount in controversy be determined for each defendant as to each plaintiff. 14A Wright, supra, § 3704; Brand Name Prescription Drugs Antitrust Litigation, 123 F.3d 599, 607-608 (7th Cir.1997), cert. denied sub nom. - U.S. -, 118 S.Ct. 1178, 140 L.Ed.2d 186, and - U.S. -, 118 S.Ct. 1336, 140 L.Ed.2d 498, and - U.S. -, 118 S.Ct. 1337, - L.Ed.2d - (1998). If each plaintiff has a separate right to be free from defendant’s acts, then the value of the injunction is determined only in regard to that plaintiff. Id. However, if the plaintiffs have an undivided interest in the relief, this total, single amount is used. In Brand Name, each plaintiff was seeking relief from alleged collusion pricing. Consequendy, it may have cost defendant very litde to cease the activity with respect to any one plaintiff." }, { "docid": "23209567", "title": "", "text": "consumer at a time. We regard this distinction as irrelevant to the logic of Snow, however, because in both cases the right asserted is a “separate and distinct” right of individual class members, not a “common and undivided” right of the class as a whole. See Gibson, 261 F.3d at-. Just as in Snoiv, the “nature of the right asserted” by Plaintiffs in this case “is the right of individual future consumers to be protected from ... allegedly deceptive advertising.” Snow at 791. Each plaintiff can sue to vindicate that right as an individual; he need not join the members of the class in order to bring a cognizable claim. Compare Eagle v. American Tel. & Tel. Co., 769 F.2d 541, 547 (9th Cir.1985) (allowing aggregation in shareholder derivative suit). Under Snyder, Pfizer cannot calculate the amount in controversy by aggregating the value of these “separate and distinct” individual claims. And under Snow, Pfizer cannot evade Snyder by re-characterizing what is, in effect, a request for aggregation as an argument for a defendant’s-viewpoint approach to calculating the cost of an injunction. Pfizer attempts to distinguish Snoiv by relying on the Seventh Circuit’s opinion in In re Brand Name Prescription Drugs Antitrust Litigation, 123 F.3d 599 (7th Cir.1997) (“Brand Name ”), a class action in which drug consumers sought to enjoin allegedly collusive sales practices by pharmaceutical companies. We do not find Pfizer’s reliance on Brand Name persuasive. Brand Name did propose valuing injunctive relief by examining “the cost to each defendant of an injunction running in favor of one plaintiff,” but it did so in dictum and without the issue having been argued to the court. Id. at 609. More important, Brand Name still applied the core inquiry of Snyder, asking “whether each plaintiff is asserting an individual right or, rather, a right to an undivided interest in something,” and noted that because each individual plaintiff had “a right to be free from the indirect effects of collusive pricing,” the case involved individual rights rather than an undivided right. Id. at 610. Even if Snow were not controlling authority, we" }, { "docid": "6175371", "title": "", "text": "California Law, Torts § 1327 at 785 (9th ed.1988). Because punitive damages do not compensate for harm, plaintiffs cannot calculate with precision the amount of any potential punitive damage award attributable to each class member. Moreover, the amount of the punitive damage award may well be influenced by the presence of a large class of plaintiffs, each of whom was wronged by the defendant in the same way. Class members share an interest in a punitive damage award only because they have joined together for the purpose of litigation. This shared interest has “nothing to do with whether-prior to litigation-they jointly held a single title or right in which each possessed a common and undivided interest.” Gilman, 104 F.3d at 1430. It is undisputed that the plaintiffs in this case could sue Chrysler individually on all the causes of action alleged in the current complaint. If they did so, nothing would preclude them from seeking and recovering punitive damages individually. This potential for multiple liability directly refutes the argument that there is some unitary res to which the plaintiffs jointly claim a right. See In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d at 608-09. Just as in their claim for compensatory damages, plaintiffs join together as a class to assert punitive damages primarily as a matter of “convenience and economy.” Troy Bank, 222 U.S. at 40, 32 S.Ct. 9. We recognize that under California law one plaintiffs recovery of punitive damages can affect the amount recovered by another plaintiff against the same defendant. See, e.g., Delos v. Farmers Group, 93 Cal.App.3d 642, 667, 155 Cal.Rptr. 843 (Cal.Ct.App.1979). But this does not, in our view, alter the “separate and distinct” nature of the claims. Some courts have suggested that an identifying characteristic of “common and undivided” claims is that one plaintiffs failure to collect would increase the recovery of the remaining plaintiffs, see, e.g., Sellers v. O’Connell, 701 F.2d at 579, but we believe this expansive definition would undercut the rationale of Snyder v. Harris. The Snyder plaintiffs argued that since their entire class would be bound by the" }, { "docid": "23505668", "title": "", "text": "1301 (11th Cir.2001); Pitney Bowes, Inc., 227 F.3d 326, 329-30 (5th Cir.2000); Brand Name, 123 F.3d at 608-09 (7th Cir.); Gilman, 104 F.3d at 1431 (2nd Cir.). This view squares with our analogous jurisdictional amount decisions. See Snow, 561 F.2d at 790 (holding that the equitable relief sought by a class may not be aggregated where each class member’s claim is separate and distinct); Goldberg v. CPC International, Inc., 678 F.2d 1365, 1367 (9th Cir.1982) (holding that attorneys’ fees sought by class members cannot be aggregated for purposes of determining the amount in controversy). Our analysis is substantially similar to our discussion of the disgorgement remedy, and the focus remains, as it must in light of Snyder and Zahn, on whether the consolidated plaintiffs and putative class members unite to assert a single title or right. Though the consolidated plaintiffs and putative class members in this case may indeed share an interest in receiving [punitive] damages ... that has nothing to do with whether — prior to litigation — -they jointly held a single title or right in which each possessed a common and undivided interest. It is irrelevant whether successful vindication of claims would create a single pool of recovery to be allocated among multiple plaintiffs; a common interest in a pool of funds is not the type of interest that permits aggregation of claims under the “common fund” doctrine. Gilman, 104 F.3d at 1430. Or, as the Seventh Circuit stated in Brand Name, “the right to punitive damages is a right of the individual plaintiff, rather than a collective entitlement of the victim’s of the defendant’s misconduct” because “[a] plaintiffs award of punitive damages is not limited by awards made to previous plaintiffs complaining of the same act of the defendant.” 123 F.3d at 608-09; see also, Allen, 63 F.3d at 1334. Each consolidated plaintiff and class member could bring an individual action for punitive damages and have his or her rights adjudicated without implicating the rights of every other person claiming such damages. See Gilman, 104 F.3d at 1430. “Claims for punitive damages, like claims for compensatory" }, { "docid": "23209562", "title": "", "text": "irrespective of the amount in controversy in those claims, and that under California law punitive damages cannot be aggregated and counted as a single amount for purposes of amount in controversy. As we did in Gibson, we hold here that any potential attorneys’ fees award in this class action cannot be attributed solely to the named plaintiffs for purposes of amount in controversy. The named plaintiffs in Gibson sought attorneys’ fees under Cal.Civ.Proc.Code § 1021.5, which awards attorneys’ fees “to a successful party.” See Gibson, 261 F.3d at 942. The named plaintiffs in this case request attorneys’ fees under California’s Consumer Legal Remedies Act, Cal. Civ.Code § 1780, which awards attorneys’ fees “to a prevailing plaintiff.” The language in the two provisions is not materially different, and we hold that attorneys’ fees awarded under § 1780 must be divided among all members of the plaintiff class for purposes of amount in controversy. See Cohen v. Office Depot, Inc., 204 F.3d 1069, 1080 & 1080 n. 11 (11th Cir.2000) (same result for Florida statute awarding fees to “prevailing party”). However, Pfizer raises one argument not considered in Gibson. It contends that the value of injunctive relief sought by Plaintiffs should be determined by calculating the cost to Defendants of providing the relief requested by the class and then treating that entire cost as the amount in controversy. Put another way, Pfizer wants us to assume for purposes of amount in controversy that a single plaintiff seeks the injunctive relief requested by Plaintiffs, and to allocate the cost to Defendants of providing the requested injunctive relief to that one plaintiff. Pfizer contends that if we were to view Plaintiffs’ ease in this way, the amount in controversy would exceed $75,000. The district court believed that Pfizer’s argument is foreclosed by Snow v. Ford Motor Co., 561 F.2d at 787. We agree. The named plaintiff in Snow brought a class action in state court, alleging that defendant Ford Motor Company (“Ford”) had sold “trailering packages” for its vehicles that did not include a necessary wiring harness, despite specific advertising statements to the contrary." }, { "docid": "23209566", "title": "", "text": "the amount of $11.00 each. That figure is far below the jurisdictional minimum. Id. at 790-91 (citations omitted, footnote omitted). Like the Snow plaintiffs, Plaintiffs in this case seek an injunction preventing Defendants from advertising and selling a defective product to them. In Snow, the product allegedly was incomplete; in this case, the product allegedly does not work. In Snow, the value to each plaintiff of the right not to be deceived by Ford’s advertising was the cost of the wiring harness Ford failed to provide-a little over $10; in this case, the value of that right is the cost of the allegedly ineffective medication-between $9 and $17. We recognize that the cases are not precisely analogous. In Snow, Ford could have complied with the requested injunction on a plaintiff-by-plaintiff basis, whereas in this case it would be more difficult for Pfizer to do so. That is, Ford could have handed out wiring harnesses to each future individual purchaser of a trailering kit, while Pfizer cannot easily stop selling or advertising its lice medication one consumer at a time. We regard this distinction as irrelevant to the logic of Snow, however, because in both cases the right asserted is a “separate and distinct” right of individual class members, not a “common and undivided” right of the class as a whole. See Gibson, 261 F.3d at-. Just as in Snoiv, the “nature of the right asserted” by Plaintiffs in this case “is the right of individual future consumers to be protected from ... allegedly deceptive advertising.” Snow at 791. Each plaintiff can sue to vindicate that right as an individual; he need not join the members of the class in order to bring a cognizable claim. Compare Eagle v. American Tel. & Tel. Co., 769 F.2d 541, 547 (9th Cir.1985) (allowing aggregation in shareholder derivative suit). Under Snyder, Pfizer cannot calculate the amount in controversy by aggregating the value of these “separate and distinct” individual claims. And under Snow, Pfizer cannot evade Snyder by re-characterizing what is, in effect, a request for aggregation as an argument for a defendant’s-viewpoint approach to" }, { "docid": "8126328", "title": "", "text": "the “either-viewpoint” rule or the “either-party” rule. See Gonzalez v. Fairgale Properties Co., N.V., 241 F.Supp.2d 512, 517 (D.Md.2002). However, there was only one plaintiff in Lolly. 327 F.2d at 569. The Fourth Circuit has not considered whether or how this “either-viewpoint” rule would apply in the context of a putative class action or other multiple-plaintiff case in light of the non-aggregation principles set forth in Zahn, 414 U.S. at 293-96, 94 S.Ct. 505. Other courts have expressly addressed the application of the “either-viewpoint” rule in a class-action context in light of the non-aggregation rule set forth in Zahn. The Ninth Circuit has “acknowledged the inherent conflict between the ‘either viewpoint’ rule and the non-aggregation rule when calculating the amount in controversy in class action suits seeking equitable relief, and determined that the former must yield;” In re Ford Motor Co./Citibank (South Dakota), N.A., 264 F.3d 952, 958-959 (9th Cir.2001) (citing Snow v. Ford Motor Co., 561 F.2d 787, 788-91 (9th Cir.1977)). The Seventh Circuit reconciled the “either-viewpoint” rule and the non-aggregation rule in the following manner: Whatever the form of relief sought, each plaintiffs claim must be held separate from each other plaintiffs claim from both the plaintiffs and the defendant’s standpoint. The defendant in such a case is deemed to face multiple claims for injunctive relief, each of which must be separately evaluated. The question then becomes ... whether each plaintiff is asserting an individual right or, rather, a right to an undivided interest in something. [When it is the former,] [t]he test, we repeat, is the cost to each defendant of an injunction running in favor of one plaintiff; otherwise the no-naggregation rule would be violated. In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 609 (7th Cir.1997) (internal citation omitted). Because the Fourth Circuit has not carved out any exception to the “either-viewpoint” rule for class actions or other multiple-plaintiff cases, this court adopts the Seventh Circuit’s approach in Brand Name, which best reconciles the “either-viewpoint” rule with the non-aggregation rule established in Zahn, Here, Allstate attached to its Notice of Removal an affidavit" } ]

[ { "docid": "22690533", "title": "", "text": "is without merit. D. Constitutionality of the sentencing statutes after Apprendi Carranza challenges the constitutionality of 21 U.S.C. §§ 841(b) and 960(b), the statutes under which he was sentenced. The constitutionality of a statute is a question of law reviewed de novo. See United States v. Jones, 231 F.3d 508, 513 (9th Cir.2000). We hold that the statutes under which Carranza was sentenced are constitutional on their face and as applied in this case. A recent Ninth Circuit en banc decision explicitly held 21 U.S.C. § 841 to be facially constitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). United States v. Buckland, 277 F.3d 1173, 1187 (9th Cir.2002) (en banc). By extension of the reasoning in Buckland, this Court held that 21 U.S.C. § 960 is also facially constitutional under Apprendi. United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002). Carranza’s as-applied challenge to the constitutionality of sections 841 and 960 also fails. As in Mendozar-Paz, Carranza was never exposed to a sentence beyond the prescribed statutory maximum. Id. at 1110-11. The court in Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Carranza was never exposed to a sentence greater than 60 months’ imprisonment, the maximum to which he constitutionally may be exposed under sections 960(b)(4) and 841(b)(1)(D). Because the district court in Carranza’s case did not exceed the maximum sentence permitted by the statutes for an unspecified amount of marijuana, Apprendi is not implicated. E. Mens rea as to type and quantity of the controlled substance Carranza’s final argument is that the district court erred when it instructed the jury that the government did not have to prove that Carranza knew that the substance was marijuana or that Carranza knew the amount of the substance. “Whether a jury instruction misstates elements of a statutory crime is a question of law [and] reviewed de" } ]

[ { "docid": "23213688", "title": "", "text": "quantity of drug — that determine the maximum penalties for such violations. Although we squarely rejected this argument in United States v. Buckland, 289 F.3d 558, 562 (9th Cir.2002) (en banc) (holding 21 U.S.C. § 841 constitutional) and United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002) (holding 21 U.S.C. § 960 constitutional), Hernandez now claims that Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), requires us to hold that Buckland and Mendoza-Paz were wrongly analyzed and that the Supreme Court has overruled these precedents. We reject this argument and hold that Buckland and Mendoza-Paz have continuing validity in light of Harris, which did not overrule nor undermine them. Appellant’s first argument, that Harris overrules Buckland and Mendozo-Paz, is based on our reasoning in Buckland indicating that the difference in labels between “sentencing factors” and “elements of a crime” was not important. Applying Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we asked in Buckland: “does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Buckland, 289 F.3d at 566 (quoting Apprendi, 530 U.S. at 494, 120 S.Ct. 2348). Hernandez contends that Buckland’s minimizing the distinction between “ele ments of the offense” and “sentencing factors” lacks validity in light of the Supreme Court’s decision in Harris v. United States, — U.S. -, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). We disagree. Harris is consistent with Buckland and holds that “ ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum,’ whether the statute calls it an element or a sentencing factor, ‘must be submitted to a jury, and proved beyond a reasonable doubt.’ ” Id. at 2410. (quoting Apprendi 530 U.S. at 490, 120 S.Ct. 2348) (emphasis added). It is the “effect” of the fact that is important. Apprendi, 530 U.S. at 494, 120 S.Ct. 2348; Buckland, 289 F.3d at 566; Mendoza-Paz, 286 F.3d at 1110. Hernandez’s second argument that Harris trumps Buckland is based on" }, { "docid": "22143763", "title": "", "text": "dispute his involvement, or the quantity of marijuana at stake, in the first two transactions. The district court rejected Minore’s entrapment argument, adopted the findings and recommendation of the PSR and sentenced Minore to 188 months in prison and five years of supervised release. During the briefing of Minore’s case on appeal, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi applies to Minore’s appeal because it comes to us on direct review. United States v. Buckland, 289 F.3d 558, 563-64 (9th Cir.2002) (en banc) (citing Griffith, v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)), amending and superseding 277 F.3d 1173, cert. denied, — U.S. -, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002). Minore first challenges his conviction on the ground that Apprendi rendered § 960 facially unconstitutional, an argument we rejected in United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002). Minore next chal lenges the validity of his guilty plea because the district court did not inform him that, if his case went to trial, the government would be required to prove drug quantity to a jury beyond a reasonable doubt. Whether Rule 11 requires the district court to so advise the defendant is an issue of first impression in our Circuit, and we review de novo the adequacy of the plea colloquy. United States v. Timbana, 222 F.3d 688, 702 (9th Cir.), cert. denied, 531 U.S. 1028, 121 S.Ct. 604, 148 L.Ed.2d 516 (2000). A. Rule 11(c)(1) and Due Process Require the District Court to Inform the Defendant of the Critical Elements of the Offense. Federal Rule of Criminal Procedure 11 is designed “to assist the district judge in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary.” McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), superseded on other grounds by Fed.R.Crim.P. 11(h). Rule 11(c)(1) requires the district court to “address the defendant personally in open court” and advise the defendant of “the nature of the charge to which the" }, { "docid": "7216978", "title": "", "text": "(internal citations omitted). Cedano-Arellano maintains that, at this point in time, the agents did not have probable cause to arrest him. We disagree. To begin with, the “alert” by the certified, reliable narcotics detector dog was sufficient, even by itself, to support a finding of probable cause. See United States v. Lingenfelter, 997 F.2d 632, 639 (9th Cir.1993) (holding that “[a] canine sniff alone can supply the probable cause necessary for issuing a search warrant if the application for the warrant establishes the dog’s reliability”). Moreover, in this case, there was more: Cedano-Arellano’s nervousness and evasiveness, and the fact that Cedano-Arellano himself told the agent that someone else had borrowed his truck the day before. Accordingly, we agree with the district court that there was probable cause for Cedano-Arel-lano’s initial arrest. C. Constitutionality of 21 U.S.C. § 960 In United States v. Buckland, 289 F.3d 558 (9th Cir.2002) (en banc), we rejected the argument that 21 U.S.C. § 841(b) is facially unconstitutional under Apprendi. We reached the same conclusion as to 21 U.S.C. § 960 in United States v. Mendoza-Paz, 286 F.3d 1104 (9th Cir.2002). Ceda-no-Arellano, however, argues that the Supreme Court’s subsequent opinion in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), overrules these opinions. This argument was already rejected in a published opinion of this Court in United States v. Hernandez, 314 F.3d 430, 437-38 (9th Cir.2002). Accordingly, under basic principles of stare decisis, we reject it as well. D.Propriety of grand jury instruction Cedano-Arellano argues that the grand jury instruction in this case violated the Supreme Court’s holding in Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986), because the judge instructed the grand jurors that they had a duty to indict him if they found probable cause to believe he was guilty. This Court has rejected Cedano-Arellano’s argument in United States v. Marcucci, 299 F.3d 1156, 1161 (9th Cir.2002) (per curiam). III. Harmless Error We publish this opinion to make clear that discovery of the qualifications of a dog used for drug detection is mandatory. However," }, { "docid": "23213691", "title": "", "text": "Congress intended drug type and quantity to be determined by the judge or the jury, and under what burden of proof. Buckland, 289 F.3d at 567. Because construing § 841 as requiring the sentencing judge to determine drug type and amount posed serious constitutional problems, and because a constitutional reading of § 841 was “fairly possible,” in Buckland we properly used the avoidance doctrine to conclude that Congress must have intended the jury to determine drug type and quantity beyond a reasonable doubt. Id. Harris does not hold or indicate that was error. Rejecting appellants’ arguments in full, we now hold that there is nothing in Harris contradicting or overruling Buckland’s decision sustaining the constitutionality of 21 U.S.C. § 841 and Mendoza-Paz’s decision sustaining the constitutionality of 21 U.S.C. § 960. V Finally, Hernandez argues that the reasoning behind our decisions in Buckland and Mendoza-Paz require the government to prove that Hernandez had the requisite mens rea with respect to both the type and quantity of drug he possessed and imported. This challenge is foreclosed by United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) (“A defendant charged with importing or possessing a drug is not required to know the type and amount of the drug.”). AFFIRMED. . This is not an easy task considering the size of our country. The United States has 5,525 miles of border with Canada and 1,989 miles with Mexico. Our maritime border includes 95,000 miles of shoreline, and a 3.4 million square mile exclusive economic zone. And each year, more than 500 million people cross the borders into the United States, some 330 million of whom are non-citizens. See http://www.whitehouse.gov/deptofhome-lan d7sect3.html. . We need conclude only that Hernandez’s presence in the rear seat of the minivan in conjunction with his suspicious behavior and proximity to the commercial quantity of illegal drugs gave border agents probable cause to arrest him. We need not address whether probable cause would have existed to arrest all the passengers in the vehicle, here containing commercial quantities of illegal drugs, if there had been no other evidence casting suspicion" }, { "docid": "22282707", "title": "", "text": "factors by a preponderance of the evidence, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We rejected facial challenges to sections 841 and 960 in United States v. Buckland, 277 F.3d 1173, amended, 289 F.3d 558, 563-68 (9th Cir.2002) (en banc) (Section 841), and United States v. Mendoza-Paz, 286 F.3d 1104, 1110 (9th. Cir.2002) (Section 960). See also United States v. Jimenez, 300 F.3d 1166, 1171 (9th Cir.2002); United States v. Carranza, 289 F.3d 634, 643 (9th Cir.2002); United States v. Varela-Rivera, 279 F.3d 1174, 1175 n. 1 (9th Cir.2002). Appellants now claim that the Supreme Court’s decision in Harris v. United States, 536 U.S. 545, 552, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), has undermined the method of statutory construction employed in Buckland and followed in Mendoza-Paz. We rejected a similar argument in United States v. Hernandez, 322 F.3d 592, 600-02 (9th Cir.2003). We adopt our reasoning in Hernandez and reaffirm that 21 U.S.C. §§ 841 and 960 require material facts to be submitted to the jury and proved beyond a reasonable doubt, consistent with Apprendi So construed, Sections 841 and 960 are not facially unconstitutional. IV. CONCLUSION For the foregoing reasons, the decision of the district court denying Appellants’ motion to dismiss their indictments is AFFIRMED. .See United States v. Rivera-Sillas, 376 F.3d 887, 893-94 (9th Cir.2004) (upholding the grand jury instructions against a challenge that they improperly circumscribed the subject matter of the grand jury’s inquiries and deliberations by instructing them not to consider the wisdom of criminal laws); United States v. Adams, 343 F.3d 1024, 1027 n. 1 (9th Cir.2003); United States v. Marcucci, 299 F.3d 1156, 1164-65 (9th Cir.2002). . Congress has granted authority to the Judicial Conference of the United States to “adopt rules and regulations governing the provisions and the operation of the plans formulated’ ’ by current law dealing with grand jury procedure. 28 U.S.C. § 1863(a). . This quoted section is the charge given to the grand jury by District Judge Jeffrey Miller. There are minor differences between the model charge and" }, { "docid": "22282706", "title": "", "text": "prosecutor and grand jury. In upholding the model grand jury instructions against Appellants’ constitutional challenge, we do not necessarily hold that the current instructions could not or should not be improved. We recognize the commentary pointing to discrete changes that tend to reduce the independence of the modern grand jury and the commentary urging reform in expanding the grand jury’s duty and role in the criminal process. We even concede that there may be more done to further increase the shielding power of the modern federal grand jury. However, we are not a drafting committee for the grand jury instructions. We are not faced with the question of how to reform the modern grand jury but whether its model instructions are constitutional. To answer this question, we hold that the provisions of the model grand jury instructions challenged here are constitutional. III. . FACIAL CONSTITUTIONALITY OF 21 U.S.C. §§ 841 and 960 Appellants argue that 21 U.S.C. §§ 841 and 960 are unconstitutional on their face because they permit the judge to determine the sentencing factors by a preponderance of the evidence, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We rejected facial challenges to sections 841 and 960 in United States v. Buckland, 277 F.3d 1173, amended, 289 F.3d 558, 563-68 (9th Cir.2002) (en banc) (Section 841), and United States v. Mendoza-Paz, 286 F.3d 1104, 1110 (9th. Cir.2002) (Section 960). See also United States v. Jimenez, 300 F.3d 1166, 1171 (9th Cir.2002); United States v. Carranza, 289 F.3d 634, 643 (9th Cir.2002); United States v. Varela-Rivera, 279 F.3d 1174, 1175 n. 1 (9th Cir.2002). Appellants now claim that the Supreme Court’s decision in Harris v. United States, 536 U.S. 545, 552, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), has undermined the method of statutory construction employed in Buckland and followed in Mendoza-Paz. We rejected a similar argument in United States v. Hernandez, 322 F.3d 592, 600-02 (9th Cir.2003). We adopt our reasoning in Hernandez and reaffirm that 21 U.S.C. §§ 841 and 960 require material facts to be submitted to" }, { "docid": "22701824", "title": "", "text": "name Pablo. Nor did she mention watch batteries. The Agent further testified, without objection, that she “didn’t believe her story.” At the close of trial, the court instructed the jury that the government “is not required to prove that the amount or quantity of marijuana was as charged in the indictment. It need only prove beyond a reasonable doubt there was a measurable or detectable amount of marijuana.” The jury returned a verdict of guilty on both counts after less than three hours. After a sentencing hearing on January 3, 2000, the district court sentenced Mendoza-Paz to twenty-one months. The judgment and commitment was filed on January 3, 2000, and Mendoza-Paz filed a Notice of Appeal on the same day. II. Discussion A. Constitutionality of 21 U.S.C. §§ 841 and 960 Mendoza-Paz contends that 21 U.S.C. § 841(a)(1) and § 960 are facially unconstitutional because they require the determination of drug quantity, and therefore the establishment of the applicable maximum sentence, to be made by the judge rather than a jury. Thus, MendozaPaz reasons, this scheme violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Mendoza-Paz’s argument that 21 U.S.C. § 841(a)(1) is unconstitutional is foreclosed by our recent decision in United States v. Buckland, 277 F.3d 1173 (9th Cir.2002) (en banc), which held that the provisions of Section 841 are constitutional. Applying the rationale of Buckland, we must also reject Mendoza-Paz’s facial constitutional challenge to 21 U.S.C. § 960. Neither statute requires that the issue of drug quantity be committed to the sentencing judge rather than the jury, Because the statutes are “ ‘silent on the question of what procedures courts are to use in implementing its provisions ..., the rule in Apprendi in no way conflicts with the explicit terms of the statute.’” Buckland, 277 F.3d at 1180 (quoting United States v. Cernobyl, 255 F.3d 1215, 1219 (10th Cir.2001)). As we noted in Buckland, the drug statutes are most striking for what they do not say. Buckland, 277 F.3d at 1179. Like Section 841, and unlike the statute examined in Apprendi v." }, { "docid": "22859963", "title": "", "text": "his evidentiary hearing. We disagree. The language in the conditional plea agreement is clear: It emphasizes the motion to suppress, and it focuses on the “mere presence” doctrine of Ybarra. The agreement did not make reference to Hernandez’s right to appeal the scope of his evidentiary hearing before the district court. Even if Hernandez could appeal the scope of his evidentiary hearing, Her nandez would not prevail, because the district court, within its discretion, granted Hernandez an ample evidentiary hearing that elicited evidence about his nervousness and his arrest. The government asked Inspector Smura on direct examination about the nervousness of the occupants of the minivan and Smura’s testimony pointed to many facts relating to Hernandez’s arrest, including his conversation with the driver of the minivan, the drug dog alert on the minivan and Smu-ra’s prior knowledge of drug smuggling vehicles. Smura was open to cross-examination on these matters. We conclude that Hernandez waived his right to appeal the scope of his evidentiary hearing and that, even if he had not waived that right, the district court did not abuse its discretion when it granted Hernandez a limited evidentiary hearing. IV We turn to Hernandez’s challenge that the drug statutes in 21 U.S.C. §§ 841 and 960 violate the Fifth and Sixth Amendments by taking from the jury, and giving to the trial judge, fact determinations — -the type and quantity of drug — that determine the maximum penalties for such violations. Although we squarely rejected this argument in United States v. Buckland, 289 F.3d 558, 562 (9th Cir.2002) (en banc) (holding 21 U.S.C. § 841 constitutional) and United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002) (holding 21 U.S.C. § 960 constitutional), Hernandez now claims that Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), requires us to hold that Buckland and Mendoza-Paz were wrongly analyzed and that the Supreme Court has overruled these precedents. We reject this argument and hold that Buckland and Mendoza-Paz have continuing validity in light of Harris, which did not overrule nor undermine them. Appellant’s first argument, that" }, { "docid": "22859964", "title": "", "text": "district court did not abuse its discretion when it granted Hernandez a limited evidentiary hearing. IV We turn to Hernandez’s challenge that the drug statutes in 21 U.S.C. §§ 841 and 960 violate the Fifth and Sixth Amendments by taking from the jury, and giving to the trial judge, fact determinations — -the type and quantity of drug — that determine the maximum penalties for such violations. Although we squarely rejected this argument in United States v. Buckland, 289 F.3d 558, 562 (9th Cir.2002) (en banc) (holding 21 U.S.C. § 841 constitutional) and United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002) (holding 21 U.S.C. § 960 constitutional), Hernandez now claims that Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), requires us to hold that Buckland and Mendoza-Paz were wrongly analyzed and that the Supreme Court has overruled these precedents. We reject this argument and hold that Buckland and Mendoza-Paz have continuing validity in light of Harris, which did not overrule nor undermine them. Appellant’s first argument, that Harris overrules Buckland and Mendoza-Paz, is based on our reasoning in Buckland indicating that the difference in labels between “sentencing factors” and “elements of a crime” was not important. Applying Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we asked in Buckland: “does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Buckland, 289 F.3d at 566 (quoting Apprendi, 530 U.S. at 494, 120 S.Ct. 2348). Hernandez contends that Buckland’s minimizing the distinction between “elements of the offense” and “sentencing factors” lacks validity in light of the Supreme Court’s decision in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). We disagree. Harris is consistent with Buckland and holds that “ ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum,’ whether the statute calls it an element or a sentencing factor, ‘must be submitted to a jury, and proved beyond a reasonable" }, { "docid": "22859970", "title": "", "text": "constitutional problems, and because a constitutional reading of § 841 was “fairly possible,” in Buckland we properly used the avoidance doctrine to conclude that Congress must have intended the jury to determine drug type and quantity beyond a reasonable doubt. Id. Harris does not hold or indicate that was error. Rejecting appellants’ arguments in full, we now hold that there is nothing in Harris contradicting or overruling Buckland’s decision sustaining the constitutionality of 21 U.S.C. § 841 and Mendoza-Paz’s decision sustaining the constitutionality of 21 U.S.C. § 960. V Finally, Hernandez argues that the reasoning behind our decisions in Buckland and Mendoza-Paz require the government to prove that Hernandez had the requisite mens rea with respect to both the type and quantity of drug he possessed and imported. This challenge is foreclosed by United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) (“A defendant charged with importing or possessing a drug is not required to know the type and amount of the drug.”). AFFIRMED. . This is not an easy task considering the size of our country. The United States has 5,525 miles of border with Canada and 1,989 miles with Mexico. Our maritime border includes 95,000 miles of shoreline, and a 3.4 million square mile exclusive economic zone. And each year, more than 500 million people cross the borders into the United States, some 330 million of whom are non-citizens. See http://www.whitehouse.gov/deptofhomeland /sect3.html. . We need conclude only that Hernandez’s presence in the rear seal of the minivan in conjunction with his suspicious behavior and proximity to the commercial quantity of illegal drugs gave border agents probable cause to arrest him. We need not address whether probable cause would have existed to arrest all the passengers in the vehicle, here containing commercial quantities of illegal drugs, if there had been no other evidence casting suspicion on the passengers. . Although, under Bravo, we view the arrest as occurring in the secondary office after confirmation of the nature of the illegal drugs, we would view the probable cause analysis as almost identical if the arrest were considered to have" }, { "docid": "4387118", "title": "", "text": "of Velasco-Heredia’s bench trial and sentencing, Ninth Circuit precedent clearly held that drug quantity was not an element of conspiracy to distribute marijuana and could be proved for sentencing purposes by a preponderance of the evidence. See, e.g., United States v. Sotelo-Rivera, 931 F.2d 1317, 1319 (9th Cir.1991). The usual course in a trial such as this was not to determine drug quantity until sentencing. Therefore, Judge Gonzalez’s procedural approach to this issue and her use of the preponderance standard to determine the amount of drugs attributable to Velasco-Heredia was fully in accord with controlling Ninth Circuit law. However, first Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215, and then Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, cast a cloud over this precedent and raised a question as to whether drug quantity is a fact that the government must prove beyond a reasonable doubt in connection with sentencing. Sitting en banc in United States v. Buckland, 277 F.3d 1173 (9th Cir.2001) (en banc), we answered this and related questions in the affirmative. In Buckland, we held that because the determination of drug quantity can increase the maximum penalty to which a defendant is subject, it is the type of fact that the government must prove beyond a reasonable doubt. We said, We honor the intent of Congress and the requirements of due process by treating drug quantity and type, which fix the maximum sentence for a conviction, as we would any other material fact in a criminal prosecution: it must be charged in the indictment, submitted to the jury, subject to the rules of evidence, and proved beyond a reasonable doubt. Id. at 1182. See also United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir.2000) (overruling Sotelo-Rivera and related cases as in conflict with Apprendi). Enter Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). In this case, the Supreme Court held that Apprendi had not overruled its holding fourteen years earlier in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which “sustained a statute that" }, { "docid": "22701825", "title": "", "text": "scheme violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Mendoza-Paz’s argument that 21 U.S.C. § 841(a)(1) is unconstitutional is foreclosed by our recent decision in United States v. Buckland, 277 F.3d 1173 (9th Cir.2002) (en banc), which held that the provisions of Section 841 are constitutional. Applying the rationale of Buckland, we must also reject Mendoza-Paz’s facial constitutional challenge to 21 U.S.C. § 960. Neither statute requires that the issue of drug quantity be committed to the sentencing judge rather than the jury, Because the statutes are “ ‘silent on the question of what procedures courts are to use in implementing its provisions ..., the rule in Apprendi in no way conflicts with the explicit terms of the statute.’” Buckland, 277 F.3d at 1180 (quoting United States v. Cernobyl, 255 F.3d 1215, 1219 (10th Cir.2001)). As we noted in Buckland, the drug statutes are most striking for what they do not say. Buckland, 277 F.3d at 1179. Like Section 841, and unlike the statute examined in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Section 960 “does not specify who shall determine drug quantity or identify the appropriate burden of proof for these determinations.” Id. In Buckland, we made clear that Apprendi does not hold that Congress can no longer have separate statutory provisions governing a substantive offense and sentencing factors. Id. at 1180-82. Congress intended to impose increased penalties for increasing quantities of increasingly serious drugs. Therefore, our “aim remains to give effect to Congress’s intent. That intent is apparent: to ramp up the punishment for controlled substance offenders based on the type and amount of illegal substance involved in the crime.” Id. at 1182. As Mendoza-Paz has consistently argued, Sections 841 and 960 are “structurally identical.” Therefore, the rationale of Buckland governs this claim. See United States v. Varela-Rivera, 279 F.3d 1174, 1175 n. 1 (9th Cir.2002) (holding that challenge to constitutionality of Section 952 is precluded based on the Buckland decision). Finding Buckland’s reasoning equally applicable to Section 960, we hold that the statute" }, { "docid": "22859965", "title": "", "text": "Harris overrules Buckland and Mendoza-Paz, is based on our reasoning in Buckland indicating that the difference in labels between “sentencing factors” and “elements of a crime” was not important. Applying Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we asked in Buckland: “does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Buckland, 289 F.3d at 566 (quoting Apprendi, 530 U.S. at 494, 120 S.Ct. 2348). Hernandez contends that Buckland’s minimizing the distinction between “elements of the offense” and “sentencing factors” lacks validity in light of the Supreme Court’s decision in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). We disagree. Harris is consistent with Buckland and holds that “ ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum,’ whether the statute calls it an element or a sentencing factor, ‘must be submitted to a jury, and proved beyond a reasonable doubt.’” Id. at 2410. (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348) (emphasis added). It is the “effect” of the fact that is important. Apprendi, 530 U.S. at 494, 120 S.Ct. 2348; Buckland, 289 F.3d at 566; Mendoza-Paz, 286 F.3d at 1110. Hernandez’s second argument that Harris trumps Buckland is based on the contention that Harris rejected Buckland’s use of the “canon of constitutional avoidance.” Harris did no such thing. The Supreme Court in Harris did not employ the canon of constitutional avoidance because that canon “applies only when there are serious concerns about the statute’s constitutionality,” and the Court found that there were not serious concerns about the statute at issue there, 18 U.S.C. § 924(c)(1)(A). Harris, 122 S.Ct. at 2413. Although Harris did not involve a serious challenge to the constitutionality of a statute, Buckland did. It was proper for us to use the canon of constitutional avoidance in Buckland. Hernandez, however, specifically points to the language in Harris rejecting “a dynamic view of statutory interpretation, under which the text might mean" }, { "docid": "16321946", "title": "", "text": "of persuasion, whereas here, under the harmless error standard, the burden lies on the government. We give little weight to Villalobos’ stipulation, entered when he was not properly informed as to the burden of proof. We conclude Villalobos’ guilty plea was not knowing, intelligent or voluntary because he was not informed that drug quantity was an element of his offense to be proven beyond a reasonable doubt, and the error affected Villalobos’ substantial rights and was not harmless. The district court should have allowed Villalobos to withdraw his plea. III. Conclusion We reverse and remand to the district court to vacate Villalobos’ plea, conviction and sentence, and for further proceedings consistent with this decision. REVERSED AND REMANDED. . There is some uncertainty in the record as to the defendant's correct name. At the plea colloquy, the defendant said his name was Julio Rodriguez-Ramirez. In accordance with the caption, we refer to him as Villalo-bos. . 21 U.S.C. § 841(b)(1)(A) addresses violations involving 1 kilogram or more of heroin and exposes a defendant to a sentence of 10 years to life. . This argument is now foreclosed by United States v. Buckland, 289 F.3d 558 (9th Cir.2002)(en banc) and United States v. Mendoza-Paz, 286 F.3d 1104, 1107 (9th Cir.2002). . Villalobos' opening brief questions the district court’s refusal to withdraw his plea and its imposition of the mandatory minimum, arguing that his plea was “unintelligent\" because he was not informed that drug quantity was an element that would have to be proved beyond a reasonable doubt. While this case was pending, our court decided United States v. Minore, 292 F.3d 1109 (9th Cir.2002), cert. denied, 537 U.S. 1146, 123 S.Ct. 948, 154 L.Ed.2d 848 (2003), which addressed Appren-di errors in the context of a plea colloquy. We requested supplemental briefing on the impact of Minore. The government’s supplementary brief recognized that Villalobos' challenge to his plea encompassed the adequacy of the plea colloquy since Villalobos moved to withdraw his plea prior to sentenc-. ing on the grounds that he was not properly informed as to the elements of his offense, that" }, { "docid": "16321947", "title": "", "text": "of 10 years to life. . This argument is now foreclosed by United States v. Buckland, 289 F.3d 558 (9th Cir.2002)(en banc) and United States v. Mendoza-Paz, 286 F.3d 1104, 1107 (9th Cir.2002). . Villalobos' opening brief questions the district court’s refusal to withdraw his plea and its imposition of the mandatory minimum, arguing that his plea was “unintelligent\" because he was not informed that drug quantity was an element that would have to be proved beyond a reasonable doubt. While this case was pending, our court decided United States v. Minore, 292 F.3d 1109 (9th Cir.2002), cert. denied, 537 U.S. 1146, 123 S.Ct. 948, 154 L.Ed.2d 848 (2003), which addressed Appren-di errors in the context of a plea colloquy. We requested supplemental briefing on the impact of Minore. The government’s supplementary brief recognized that Villalobos' challenge to his plea encompassed the adequacy of the plea colloquy since Villalobos moved to withdraw his plea prior to sentenc-. ing on the grounds that he was not properly informed as to the elements of his offense, that error had occurred, and that the harmless error standard applied. See United States v. Martinez, 277 F.3d 517, 524 & n. 8 (4th Cir.2002); Minore, 292 F.3d at 1113. See also United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). . In determining the defendant’s understanding of the rights at issue, we may look at the record of the sentencing hearing as well as the record of the plea colloquy. Vonn, 122 S.Ct. at 1054-1055; Minore, 292 F.3d at 1119. . We reject the dissent’s contention that our reliance on Minore is improper in light of the Supreme Court's decision in United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). Unlike Ruiz, which concerned evidence that might be adduced at trial to satisfy the government's burden of proof, information which was related to the fairness of a trial, not the voluntariness of a plea, and did not affect whether the defendant understood \"the nature of the right and how it would likely apply in general" }, { "docid": "23213687", "title": "", "text": "could appeal the scope of his evidentiary hearing, Hernandez would not prevail, because the district court, within its discretion, granted Hernandez an ample evidentiary hearing that elicited evidence about his nervousness and his arrest. The government asked Inspector Smura on direct examination about the nervousness of the occupants of the minivan and Smura’s testimony pointed to many facts relating to Hernandez’s arrest, including his conversation with the driver of the minivan, the drug dog alert on the minivan and Smura’s prior knowledge of drug smuggling vehicles. Smura was open to cross-examination on these matters. We conclude that Hernandez waived his right to appeal the scope of his evidentiary hearing and that, even if he had not waived that right, the district court did not abuse its discretion when it granted Hernandez a limited evidentiary hearing. IV We turn to Hernandez’s challenge that the drug statutes in 21 U.S.C; §§ 841 and 960 violate the Fifth and Sixth Amendments by taking from the jury, and giving to the trial judge, fact determinations — the type and quantity of drug — that determine the maximum penalties for such violations. Although we squarely rejected this argument in United States v. Buckland, 289 F.3d 558, 562 (9th Cir.2002) (en banc) (holding 21 U.S.C. § 841 constitutional) and United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002) (holding 21 U.S.C. § 960 constitutional), Hernandez now claims that Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), requires us to hold that Buckland and Mendoza-Paz were wrongly analyzed and that the Supreme Court has overruled these precedents. We reject this argument and hold that Buckland and Mendoza-Paz have continuing validity in light of Harris, which did not overrule nor undermine them. Appellant’s first argument, that Harris overrules Buckland and Mendozo-Paz, is based on our reasoning in Buckland indicating that the difference in labels between “sentencing factors” and “elements of a crime” was not important. Applying Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we asked in Buckland: “does the required finding expose the defendant" }, { "docid": "22859969", "title": "", "text": "Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932)); see also Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”). Thus, Harris does not by its terms supplant the fundamental canon of constitutional avoidance: Courts can and should continue to adopt statutory interpretations, when feasible, that will avoid serious constitutional issues. Avoiding such issues, which are considered only when necessary, is a measure of restraint by the Judiciary and a measure of respect for Congress as a coordinate branch. In Buckland, the court observed that it was unclear from the language of § 841 whether Congress intended drug type and quantity to be determined by the judge or the jury, and under what burden of proof. Buckland, 289 F.3d at 567. Because construing § 841 as requiring the sentencing judge to determine drug type and amount posed serious constitutional problems, and because a constitutional reading of § 841 was “fairly possible,” in Buckland we properly used the avoidance doctrine to conclude that Congress must have intended the jury to determine drug type and quantity beyond a reasonable doubt. Id. Harris does not hold or indicate that was error. Rejecting appellants’ arguments in full, we now hold that there is nothing in Harris contradicting or overruling Buckland’s decision sustaining the constitutionality of 21 U.S.C. § 841 and Mendoza-Paz’s decision sustaining the constitutionality of 21 U.S.C. § 960. V Finally, Hernandez argues that the reasoning behind our decisions in Buckland and Mendoza-Paz require the government to prove that Hernandez had the requisite mens rea with respect to both the type and quantity of drug he possessed and imported. This challenge is foreclosed by United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) (“A defendant charged with importing or possessing a drug is not required to know the type and amount of the drug.”). AFFIRMED. . This is not an easy task considering the size" }, { "docid": "22143762", "title": "", "text": "with the conspiracy count ... the government would have to prove those elements” listed in the plea agreement. Minore said he did. The district court did not tell Minore the government would be required to prove the drug quantity — 25,800 pounds (11,703 kilograms) — to a jury beyond a reasonable doubt. Rather, consistent with the law at that time, the district court told Minore that the court would make the ultimate determination of the amount of drugs for which Minore would be held responsible. The parties agreed in the plea agreement that, pursuant to § 2D1.1 of the Sentencing Guidelines, Minore’s base offense level was 36. See U.S.S.G. § 2Dl.l(a)(3), (c)(2) (Nov. 1, 1998) (assigning base offense level of 36 to violation of §§ 841 and 960 involving between 10,000 and 30,000 kilograms of marijuana). Similarly, the Pre-sentence Report (“PSR”) used the drug quantity to calculate the recommended base offense level of 36. See id. At sentencing, however, Minore contended that the third transaction constituted sentencing entrapment and should be disregarded. He did not dispute his involvement, or the quantity of marijuana at stake, in the first two transactions. The district court rejected Minore’s entrapment argument, adopted the findings and recommendation of the PSR and sentenced Minore to 188 months in prison and five years of supervised release. During the briefing of Minore’s case on appeal, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi applies to Minore’s appeal because it comes to us on direct review. United States v. Buckland, 289 F.3d 558, 563-64 (9th Cir.2002) (en banc) (citing Griffith, v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)), amending and superseding 277 F.3d 1173, cert. denied, — U.S. -, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002). Minore first challenges his conviction on the ground that Apprendi rendered § 960 facially unconstitutional, an argument we rejected in United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002). Minore next chal lenges the validity of his guilty plea because the district court did not inform" }, { "docid": "22701826", "title": "", "text": "New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Section 960 “does not specify who shall determine drug quantity or identify the appropriate burden of proof for these determinations.” Id. In Buckland, we made clear that Apprendi does not hold that Congress can no longer have separate statutory provisions governing a substantive offense and sentencing factors. Id. at 1180-82. Congress intended to impose increased penalties for increasing quantities of increasingly serious drugs. Therefore, our “aim remains to give effect to Congress’s intent. That intent is apparent: to ramp up the punishment for controlled substance offenders based on the type and amount of illegal substance involved in the crime.” Id. at 1182. As Mendoza-Paz has consistently argued, Sections 841 and 960 are “structurally identical.” Therefore, the rationale of Buckland governs this claim. See United States v. Varela-Rivera, 279 F.3d 1174, 1175 n. 1 (9th Cir.2002) (holding that challenge to constitutionality of Section 952 is precluded based on the Buckland decision). Finding Buckland’s reasoning equally applicable to Section 960, we hold that the statute is constitutional. Mendoza-Paz next argues that Sections 841 and 960 as applied are unconstitutional because she was sentenced pursuant to a drug type and drug quantity that were not submitted to a jury or proved beyond a reasonable doubt. This claim, too, is without merit. First, the record demonstrates that drug type was submitted to the jury. In the instructions to the jury, the trial judge stated: The Government is not required to prove that the amount or quantity of marijuana was as charged in the indictment. It need only prove beyond a reasonable doubt there was a measurable or detectable amount of marijuana for Count 1, and for Count 2, that this marijuana was possessed with intent to distribute it. By this instruction, the judge informed the jury that it had to find that the substance in question was marijuana. The record also demonstrates, however, that drug quantity was not submitted to the jury. Nevertheless, Mendoza-Paz was convicted, and subsequently sentenced, based on the court’s finding by a preponderance of the evidence that she" }, { "docid": "7216979", "title": "", "text": "in United States v. Mendoza-Paz, 286 F.3d 1104 (9th Cir.2002). Ceda-no-Arellano, however, argues that the Supreme Court’s subsequent opinion in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), overrules these opinions. This argument was already rejected in a published opinion of this Court in United States v. Hernandez, 314 F.3d 430, 437-38 (9th Cir.2002). Accordingly, under basic principles of stare decisis, we reject it as well. D.Propriety of grand jury instruction Cedano-Arellano argues that the grand jury instruction in this case violated the Supreme Court’s holding in Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986), because the judge instructed the grand jurors that they had a duty to indict him if they found probable cause to believe he was guilty. This Court has rejected Cedano-Arellano’s argument in United States v. Marcucci, 299 F.3d 1156, 1161 (9th Cir.2002) (per curiam). III. Harmless Error We publish this opinion to make clear that discovery of the qualifications of a dog used for drug detection is mandatory. However, we nonetheless conclude that the error in this case was harmless within the meaning of Fed.R.Crim.P. 52(a) because it did not affect any substantial right of Cedano-Arellano’s. As noted above, the judge reviewed the training logs in camera and concluded both that (a) the dog was reliable and (b) there was no Brady material contained therein. Accordingly, the dog’s “alert” may be considered in both the reasonable-suspicion and the probable-cause analyses. Viewed in conjunction with the other evidence, we conclude that, while defense counsel should have been given access to the requested documents, there was nothing in those documents that would have changed the - ultimate determination that the agents had reasonable suspicion to support their search of the gas tank and probable cause to arrest Cedano-Arellano. IV. Conclusion. The documents pertaining to the dog’s qualifications sought in this case were material to preparing the defense. They should have been disclosed to the defendant. Under the circumstances of this ease, we find that the failure to do so was harmless error, but we by no" } ]

[ { "docid": "2775602", "title": "", "text": "stated stipulated facts, whether plaintiff was ever in a position to present facts which would have supported such a letter or opinion. Under the circumstances, it cannot be said to have been negligence on the part of Franklin to have done what it did on this score. Secondly, plaintiff, as indicated, has belatedly advanced the argument that his stock never should have been restricted in the first instance. In light of plaintiff’s prior unsuccessful attempt to obtain a “no-action” letter on the basis that his stock was restricted and that he never made any such suggestion to Franklin or Gottschalk until the very eve ó.f this motion, it ill behooves him now to claim that his unregistered shares of Theil stock were free for transfer ab initio because he never acquired them from the issuer or from “control persons” within the meaning of the Securities Act and the regulations promulgated thereunder. In any event, regardless of whether such persons were “control persons”, they too acquired and held the shares under investment letters and clearly acted as “links in the chain of transmission of securities issuers * * to the public” (Disclosure to Investors —A Reappraisal of Federal Administrative Policies under the 1933 and 1934 Acts — the Wheat Report 161, Goldberg, Private Placement and Restricted Securities, 1972 § 7.3 [b] at page 7-10, Loss, Securities Regulation Chap. 3A at page 550) and plaintiff represented a further link in transmitting such unregistered shares into the hands of the general investing public and hence was a “statutory underwriter” as that term is commonly used. See SEC v. Guild Films Co., 279 F.2d 485 (2d Cir. 1960). Far from acting negligently and wrongfully as plaintiff alleges, Franklin and Mr. Gottschalk appear to have acted prudently and properly in making every effort to comply with the provisions of the law. Any other position taken by either or both of them might well have subjected them, to action by the Securities and Exchange Commission. Under all of the circumstances, there is no question in the Court’s mind but that Franklin’s motion for summary judgment must" } ]

[ { "docid": "3300966", "title": "", "text": "HOLLOWAY, Circuit Judge. Appellant Edina State Bank (the bank) sued Mr. Steak, Inc. (Mr. Steak) as the corporate issuer of stock and its transfer agent, Central State Bank and Trust Co. (Central), for damages for refusal to register transfer of pledged shares of Mr. Steak stock which the bank attempted to sell under its rights as pledgee. Central refused to register the transfer due to advice by Mr. Steak that the shares had been purchased for investment purposes and without a view to redistribution. Mr. Steak also had instructed Central that no transfer could be made without notice to it and aii opinion of counsel that the transfer would not violate the Securities Act of 1933 (the Act). No legend of any restriction on transfer appeared on the Mr. Steak certificates and the bank had been advised by Price, the pledgor, when it made the loans that there were no restrictions. The bank relies on the provision of § 8-204 of the Uniform Commercial Code that a restriction on transfer imposed by the issuer is ineffective unless conspicuously noted on the security, except against a person with actual knowledge of the restriction. The trial court found that the bank relied on Price’s statement that there was no restriction and thereby suffered the loss. In ruling against the bank the court concluded that the Securities Act pre-empted the field and governed instead of the Code provisions; that the federal act required no legend as to the restriction; that also as between the bank and Mr. Steak as innocent parties, a duty of inquiry should be imposed on the bank because it knew of Price’s recent employment by Mr. Steak; and that such inquiry to Mr. Steak was not made by the bank. The trial court denied recovery for the bank’s loss. We are unable to agree. First, we turn to § 8-204 of the Uniform Commercial Code which we feel supports the bank’s right to recover damages for its loss since Mr. Steak as issuer failed to note any restriction on the certificates and the bank had no actual knowledge of" }, { "docid": "22321738", "title": "", "text": "... the security is certificated and the restriction is noted conspicuously thereon.” N.Y.U.C.C. § 8-204 (McKinney 1993). It imposes a “strict rule as to notice” to protect purchasers of securities, id. official uniform cmt. 2. The consequences of failure to give notice fall on the issuer because § 8-204 applies only to transfer restrictions imposed by the issuer. In contrast, S.E.C. Rule 144 may be read to imply that securities issued under a private placement not be publicly traded for two years from the date of acquisition from the issuer. See 17 C.F.R. § 230.-144(d)(1) (1992); id. § 230.142. The Commercial Code makes no reference to restrictions imposed by any other law. A reading of § 8-204 as not including any possible restrictions arising out of SEC regulations is supported by its Official Commentary, which states that “[t]his section deals only with restrictions imposed by the issuer and restrictions imposed by statute are not affected.” N.Y.U.C.C. § 8-204 official uniform cmt. 6. Plaintiffs naturally take a contrary position. They rely primarily upon the Tenth Circuit’s broad interpretation of the U.C.C. phrase “imposed by the issuer” to include as well restrictions arising out of the Securities Act of 1933. See Edina State Bank, 487 F.2d at 644-45. There it was held that a plaintiff bank was entitled to maintain a conversion action under Colorado’s U.C.C. § 8-204 against a corporate issuer of privately placed securities that had not noted applicable Securities Act restrictions on its stock certificates. The corporation, Mr. Steak, had issued stock in a private offering to an individual named Price, who used the shares to secure a loan with the Edina Bank. When Price defaulted on his loan, the bank attempted to sell the stock it held as collateral, but was barred from doing so by the unlegended Securities Act restrictions on the shares. See id. at 642-43. The bank sued Mr. Steak and its transfer agent. The district court held for the defendants because the Edina Bank had failed to make any inquiry with the defendants, the S.E.C., or any brokers regarding the stock. See id. at" }, { "docid": "10794545", "title": "", "text": "a sufficient claim for relief under New York law against the defendant Morgan for wrongful failure to transfer plaintiff's shares. It has been held in New York that submission by a shareholder of an SEC \"no-action\" letter along with the restricted shares covered by that letter, requires the corporation and its transfer agent to transfer those shares absent a valid reason not to do so. Riskin v. National Computer Analysts, Inc., 37 A.D.2d 952, 326 N.Y.S.2d 419 (1st Dept. 1971), aff'g 62 Misc.2d 605, 308 N.Y.S.2d 985 (N.Y. Co. 1970) (Gold, J.); Donlon Ventures, Inc. v. Aven, Inc., (N.Y. Co. 1967) (Spector, J.) in 158 N.Y.L.J. July 10, 1967 at 10, Col. 4; Friedman v. Chemical Bank, (N.Y. Co. 1965) (Carney, J.) in 153 N.Y.L.J., April 13, 1965 at 14, Col. 7. Accord: Kanton v. United States Plastics, Inc., 248 F.Supp. 353 (D. N.J. 1965); Rothberg v. National Banner Corp., 259 F.Supp. 414 (E.D. Pa. 1966). No reason other than the restriction endorsed on the shares has been furnished to warrant refusal of the requested transfer. A breach of the duty to transfer entitles the shareholder to an order requiring performance and to damages measured by the difference, if any, between the price of the shares at the time of the breach and the price prevailing at the time of trial. Id. In the Kanton case, which involved remarkably similar facts to those at Bar, the Court determined that a wrongful refusal to transfer stock is in essence a conversion and that the right of action therefor arises in the locale where the instructions to refuse transfer, given by a non-domiciliary to a local agent, were intended to be, and are in fact, carried out. 248 F.Supp. at 356, 360. CPLR § 302 provides that a Court may exercise personal jurisdiction over any non-domiciliary who through an agent commits a tortious act within the state. No state or federal case construing CPLR § 302 has been found dealing with the precise issue of imputing a wrongful refusal of a transfer agent to its non-domiciliary principal. But it has been held" }, { "docid": "3300973", "title": "", "text": "on inquiry notice are not denied protection by the \"Code. The trial court’s view was that since the restriction had been made clear to Price, Mr. Steak had fulfilled its obligation to him and the public. We are convinced, however, that § 8-204 required more — that the issuer conspicuously note the restriction on the certificate for the protection of others. The bank as pledgee was among the persons protected generally by § 8-204 against a restriction not' conspicuously noted on the security, except as to a person with actual knowledge. The wrongful refusal to transfer gave rise to a right to sue as for conversion by the bank as transfer- or. See Holly Sugar Corp. v. Wilson, 101 Colo. 511, 75 P.2d 149; Official Comment 1 to § 8-204; see also Case v. Citizen’s Bank of Louisiana, 100 U.S. 446, 25 L.Ed. 695; Annotation, Remedy for refusal to transfer stock, 22 A.L.R. 2d 12, 34. We conclude that under the facts as found and shown by this record, the state law in § 8-204 of the Code supports the bank’s right to recover against the issuer which failed to comply with the strict requirement of the statute. Second, we consider the trial court’s views concerning the Securities Act and arguments of Mr. Steak and Central related to them. The court concluded that the federal statute preempted the field and that to the extent there is any conflict between it and the Code, the federal Act will prevail. And the court held that Congress had not required a legend on the certificate as to restrictions on transfer so that its absence did not make the appellees liable for refusal to register the transfer. The Securities Act of 1933, as amended, 15 U.S.C.A. § 77a et seq., does not impose a requirement for such a legend. It is recognized by the Commission’s Releases Nos. 33-5121, 17 C.F.R. §§ 231.-5121 and 33-5223, 17 C.F.R. § 231.5226, that the presence or absence of an appropriate legend will be regarded as a factor in considering whether the circumstances surrounding the offering are consistent with" }, { "docid": "3300970", "title": "", "text": "account. The brokerage house made two 500-share sales. The proceeds of $36,739.34 received by the bank were credited to Price’s checking account, and the account was debited for $27,000 to pay the loans. Price used the balance in his restaurant business. However, when the brokerage house requested registration of transfer to the purchaser, the transfer agent refused. Central said that Mr. Steak had advised it that the shares were purchased for investment and without a view to redistribution and that no transfer of the shares could be made without notice .to Mr. Steak or its counsel and without an opinion of counsel that the transfer would not violate the Securities Act. Since the sale was forestalled the bank repaid the brokerage house in full and called on Price for the funds, which he could not repay. The bank then obtained a new note from Price for $37,000 to cover all the funds advanced to Price, again secured by the stock which the bank of course then knew was restricted. § 8-204 of the Code provides: “Unless conspicuously noted on the security, a restriction on transfer imposed by the issuer even though otherwise lawful is ineffective except against a person with actual knowledge of it.” The comments on this section of the Code emphasize that it imposes a strict requirement for notice on the issuer. See Official Comment 1, 7A C.R.S.1963, § 155-8-204. This duty is similar to that imposed by § 15 of the Uniform Stock Transfer Act. Since there was no legend conspicuously noting the restriction on transfer and no actual knowledge of it by the bank, we are persuaded the bank is entitled to recover under § 8-204 of the Code, as the court was under the similar provision of the Uniform Stock Transfer Act in Prudential Petroleum Corp. v. Rauscher, Pierce & Co., 281 S.W.2d 457 (Tex.Civ.App.) (ref.n.r.e.). See also .General Development Corp. v. Catlin, 139 So.2d 901, 902 (Fla.App.); Haas v. Haas, 35 Del.Ch. 392, 119 A.2d 358. As noted the trial, court concluded that since both the bank and Mr. Steak were innocent parties, ." }, { "docid": "22321734", "title": "", "text": "Brass contended that he was entitled to receive unrestricted AFT common stock. He based this argument on U.C.C. § 8-204 and a Tenth Circuit case interpreting it. See Edina State Bank v. Mr. Steak, Inc., 487 F.2d 640, 644 (10th Cir.), cert. denied, 419 U.S. 883, 95 S.Ct. 150, 42 L.Ed.2d 123 (1974). In an order dated December 18, 1991, the district court rejected Brass’ conversion claims. It disagreed with the holding in Edina State Bank and did not think § 8-204 required issuers of securities to include notices regarding limitations on transfer arising under the federal securities laws. See Brass, 780 F.Supp. at 1004. It granted AFT summary judgment on the Brass contract claims as well, finding that the contract was between Brass and Abert, not between plaintiff and the defendant AFT. Id. Because there were relevant unresolved factual issues, both fraud claims were left in place and plaintiff was granted leave to amend his pleadings with respect to them. See id. at 1004-05. Later plaintiffs filed an amended complaint pursuing only a claim for common law fraud, which AFT moved to dismiss. On February 28, 1992 the district court granted this motion because plaintiffs had failed to state a claim upon which relief could be granted under Rule 12(b)(6) and to plead fraud with sufficient particularity under Fed.R.Civ.P. 9(b). The trial court observed that plaintiffs had two fraud claims: fraudulent misrepresentation and fraudulent concealment. As to the Brass transferees, these plaintiffs had dealt only with Brass and not with AFT. Hence, they had no claim under either theory. With respect to Brass, there was no misrepresentation because the complaint never alleged that Jensen made false statements, and there was no case for concealment because AFT and Jensen were not in a fiduciary relationship with Brass and therefore had no duty to disclose restrictions. Following a motion by the plaintiffs, the district court reconsidered its December 18 decision with respect to plaintiffs’ contract claim, and reaffirmed its prior ruling. Although it now agreed with Brass that the Stock Purchase Rights constituted a continuing offer by AFT to sell securities," }, { "docid": "22321733", "title": "", "text": "transferees. On May 3, 1990 AFT sent a clarification letter to the transferees, disclosing that both the Stock Purchase Rights and the underlying common stock were issued as part of an AFT private placement. Thus, neither was freely trade-able. On July 18, 1991 Brass and the transferees commenced the instant action against AFT in New York State Supreme Court alleging that defendant’s actions constituted a wrongful conversion of the warrants, and of the right of Brass and his distribu-tees to exercise the purchase option evidenced by those warrants. Plaintiffs demanded $290,550 damages. AFT removed the case to the United States District Court for the Southern District of New York on diversity grounds and made a Fed.R.Civ.P. 12(b)(6) motion to dismiss. The district court, Louis J. Freeh, Judge, converted that motion sua sponte to one for summary judgment. See Brass v. American Film Technologies, Inc., 780 F.Supp. 1001, 1002 (S.D.N.Y.1991). In opposing summary judgment, plaintiffs asserted that AFT’s conduct constituted conversion, breach of contract, securities fraud and common law fraud. To make out a conversion claim, Brass contended that he was entitled to receive unrestricted AFT common stock. He based this argument on U.C.C. § 8-204 and a Tenth Circuit case interpreting it. See Edina State Bank v. Mr. Steak, Inc., 487 F.2d 640, 644 (10th Cir.), cert. denied, 419 U.S. 883, 95 S.Ct. 150, 42 L.Ed.2d 123 (1974). In an order dated December 18, 1991, the district court rejected Brass’ conversion claims. It disagreed with the holding in Edina State Bank and did not think § 8-204 required issuers of securities to include notices regarding limitations on transfer arising under the federal securities laws. See Brass, 780 F.Supp. at 1004. It granted AFT summary judgment on the Brass contract claims as well, finding that the contract was between Brass and Abert, not between plaintiff and the defendant AFT. Id. Because there were relevant unresolved factual issues, both fraud claims were left in place and plaintiff was granted leave to amend his pleadings with respect to them. See id. at 1004-05. Later plaintiffs filed an amended complaint pursuing only a claim" }, { "docid": "3300972", "title": "", "text": "it was proper to impose more of a duty to inquire than the bank undertook. The Court’s findings point out that no inquiry was made of Mr. Steak, although the bank inquired of Price and was found to have relied on his representation that there was no restriction. Ap-pellees also point to admissions by the bank President that he made no inquiry of the Commission or of any brokers; that he knew that the stock was privately held and had no market and was “going to go public;” and that he did not know whether the Price shares were to be included in the registration statement. They say the record establishes a lack of due diligence. However, we think the Code provision in § 8-204 applies and that it clearly placed the duty on Mr. Steak as issuer to note the restriction eonspiciously on the certificate, not on the bank to inquire. And the statute’s protection was extended to all against an unnoted restriction except those with “actual knowledge of it.” Those who are only on inquiry notice are not denied protection by the \"Code. The trial court’s view was that since the restriction had been made clear to Price, Mr. Steak had fulfilled its obligation to him and the public. We are convinced, however, that § 8-204 required more — that the issuer conspicuously note the restriction on the certificate for the protection of others. The bank as pledgee was among the persons protected generally by § 8-204 against a restriction not' conspicuously noted on the security, except as to a person with actual knowledge. The wrongful refusal to transfer gave rise to a right to sue as for conversion by the bank as transfer- or. See Holly Sugar Corp. v. Wilson, 101 Colo. 511, 75 P.2d 149; Official Comment 1 to § 8-204; see also Case v. Citizen’s Bank of Louisiana, 100 U.S. 446, 25 L.Ed. 695; Annotation, Remedy for refusal to transfer stock, 22 A.L.R. 2d 12, 34. We conclude that under the facts as found and shown by this record, the state law in § 8-204" }, { "docid": "10794544", "title": "", "text": "POLLACK, District Judge. The defendant Ormand Industries, Inc., a Delaware corporation, seeks to dismiss the complaint on the ground that the Court has no personal jurisdiction over it in this diversity action. The plaintiff is the holder of legended and restricted stock issued by Ormand. Seeking an exchange of his shares for a like amount of unlegended and unrestricted shares, plaintiff presented his certificates accompanied by a \"no-action\" letter issued by the Securities and Exchange Commission in respect to plaintiff's shares, to the New York transfer agent for Ormand stock, the defendant Morgan Guaranty Company. Morgan, on instruction from Ormand, refused to exchange plaintiff's stock for unlegended shares on Ormand's agreement to indemnify Morgan for any loss sustained by reason of this refusal. Plaintiff seeks in this suit to obtain injunctive relief and damages against Morgan and Ormand. The defendant Ormand contends on this motion that it does not do business in New York and consequently may not be sued here. The defendant Morgan has not pleaded as yet to the complaint. The complaint states a sufficient claim for relief under New York law against the defendant Morgan for wrongful failure to transfer plaintiff's shares. It has been held in New York that submission by a shareholder of an SEC \"no-action\" letter along with the restricted shares covered by that letter, requires the corporation and its transfer agent to transfer those shares absent a valid reason not to do so. Riskin v. National Computer Analysts, Inc., 37 A.D.2d 952, 326 N.Y.S.2d 419 (1st Dept. 1971), aff'g 62 Misc.2d 605, 308 N.Y.S.2d 985 (N.Y. Co. 1970) (Gold, J.); Donlon Ventures, Inc. v. Aven, Inc., (N.Y. Co. 1967) (Spector, J.) in 158 N.Y.L.J. July 10, 1967 at 10, Col. 4; Friedman v. Chemical Bank, (N.Y. Co. 1965) (Carney, J.) in 153 N.Y.L.J., April 13, 1965 at 14, Col. 7. Accord: Kanton v. United States Plastics, Inc., 248 F.Supp. 353 (D. N.J. 1965); Rothberg v. National Banner Corp., 259 F.Supp. 414 (E.D. Pa. 1966). No reason other than the restriction endorsed on the shares has been furnished to warrant refusal of the requested" }, { "docid": "12021007", "title": "", "text": "insolvent, with the result that plaintiffs’ shares became valueless. Plaintiffs contend that the failure of the Bank to remove the legends on their stock and to issue new unrestricted certificates as requested, constituted a breach of duty imposed on the Bank, as transfer agent, by the Maine Uniform Commercial Code. 11 Maine Revised Statutes Annotated §§ 8-401, 8-406. Defendant maintains, however, that the UCC has no application to the facts of this case, and that at common law, it is undisputed that a transfer agent cannot be held liable to a stockholder in damages for mere “nonfeasance,” (such as failure to act to remove the legends). See Hulse v. Consolidated Quicksilver Min. Corp., 65 Idaho 768, 154 P.2d 149 (1944); Palmer v. O’Bannori, 253 Mass. 8, 149 N.E. 112 (1925); 12 Fletcher Cyc. Corp. § 5525 (Perm. ed. 1971). The threshold problem of UCC applicability is governed by 11 M.R.S.A. § 8-401(1), which states in relevant part: “Where a security in registered form is presented to the issuer with a request to register transfer, the issuer is under a duty to register the transfer as requested, if [conditions omitted].” (Emphasis added.) By operation of 11 M.R.S.A. § 8-406(1), a coextensive duty is imposed upon the transfer agent, and wrongful refusal by the transfer agent to register a requested transfer makes the agent liable, to the damaged shareholder. 11 M.R.S.A. § 8-401(2). A difficult state law question is presented by plaintiffs’ contention that their repeated requests for removal of the restrictive legends on their investment shares (which would be admittedly, the obvious first step in, and a necessary incident to the contemplated transfer of such stock) should be considered as a “request to register transfer” within the meaning of § 8-401(1). This is a question of first impression, not only under the law of Maine, but also under the law of every jurisdiction that has adopted the Uniform Commercial Code. It is, however, a question that we need not pass upon here since, in our view, even if this threshold issue of UCC applicability were resolved in plaintiffs’ favor, recovery under" }, { "docid": "20558623", "title": "", "text": "OPINION BONSAL, District Judge. Plaintiff Travis Investment Company (plaintiff), a Colorado partnership, instituted this diversity action against defendants Harwyn Publishing Corporation (Harwyn) and Bankers Trust Company (Bankers), both New York corporations, for damages resulting from an alleged failure to transfer shares of Class A common stock of Harwyn (Harwyn stock). The action was discontinued as against Bankers before trial. In the pretrial order, filed on November 15, 1966, the parties stipulated that the following facts were not in dispute: 1. Travis is a money lender. On or about October 10, 1963, the plaintiff loaned $25,000 to one, Jay Cohan, a resident of Denver, originally secured by 3800 shares of Harwyn stock of which 1000 shares were subsequently returned to Mr. Cohan. On January 8, 1964, the plaintiff similarly loaned $25,000 to one, Stanley M. Singer, originally secured by 3200 shares of Harwyn stock, subsequently increased to 5300. The promissory notes given by Messrs. Cohan and Singer to the plaintiff each contained a provision that, upon any default, the plaintiff might sell the collateral at public or private sale or on any broker’s board without any demand or notice to the borrower. Prior to the 1st of February, 1964, both of said notes were in default, and the plaintiff, being the holder thereof, became entitled, as between itself and the borrowers, to sell said Harwyn stock pursuant to the terms of said notes. At all times herein mentioned, Bankers was transfer agent of Harwyn’s stock. 2. On or about February 20, 1964, Bankers, as transfer agent for Harwyn, received written notification from the New York Regional Office of the Securities and Exchange Commission (S.E.C.) that it (the S.E.C.) had reason to believe that shares of Harwyn stock might appear upon the market which were owned by persons in a control relationship with Harwyn and which persons might attempt to sell such shares without registration and without the availability of an exemption under the Securities Act of 1933. Bankers was requested to notify the S.E.C. in respect of any request for transfer of any of Harwyn stock. At or about the same" }, { "docid": "12021019", "title": "", "text": "order to make their requests for transfer “rightful.” . See footnote 1, supra. . The district court correctly concluded that: “The three cases upon which plaintiffs rely are plainly distinguishable. In Kanton v. United States Plastics, Inc., 248 F.Supp. 353 (D.N.J.1965), the plaintiff supplied a favorable opinion of counsel and a “No Action” letter from the SEC. See Petrillo v. Seven Arts Productions, Ltd., [CCH Fed.Sec.L.Rep. par. 91,921 (Sup.Ct.N.Y. Apr. 7, 1967)] at 96,172. As in Kanton, the court in Riskin v. National Computer Analysts, Inc., 62 Misc.2d 605, 308 N.Y.S.2d 985 (Sup.Ct.1970), modified, 37 A.D.2d 952, 326 N.Y.S.2d 419 (App.Div.1971), nowhere held that a “no action” letter constituted the “opinion of counsel to the company” specified by the restrictive legend on the plaintiff’s share certificates. Finally, Gasarch v. Ormand Industries, Inc., 346 F.Supp. 550 (S.D.N. Y.1972) did not present the issue of whether or not a “no action” letter constitutes the required opinion of counsel within the meaning of a restrictive legend. . . . To the extent that Gasarch may be read to indicate, in dictum, that under New York law, in the absence of bad faith, a “no action” letter may require a transfer agent to effect a transfer despite a restrictive legend, the New York cases cited by the court do not support such a view. [Citation omitted]” (Emphasis in original)." }, { "docid": "12021016", "title": "", "text": "Rule 154 has subsequently been replaced by the new Rule 144. For a detailed discussion of Rule 144, see Securities Act Release No. 5306 (Sept. 26, 1972). . On the basis of specific facts presented to the Commission by the Kenlers, the Assistant Chief Counsel replied that “this Division will not recommend any action to the Commission if you sell 7,087 shares of the Company’s stock without compliance with the registration provisions of the Securities Act of 1933.” . The theory behind this common law rule is that since the transfer agent serves only as agent for the corporation, it owes no direct or affirmative obligation to the individual stockholder to register transfer of his shares. See, e. g., Nicholson v. Morgan, 119 Misc. 309, 196 N.Y.S. 147 (N.Y.Mun.Ct. 1922). For wrongful refusal to transfer shares, the transfer agent would be liable in damages solely to the corporation, which in turn would be liable to its injured shareholders. See, e. g., Fowler v. National City Bank, 49 Ga.App. 435, 176 S.E. 113 (Ct.App.1934); 12 Fletcher Cyc. Corp. §§ 5523, 5525 (Perm. ed. 1971). In situations to which it would apply, the UCC is clear in its intent to abrogate the common law immunity of transfer agents in suits brought by wrongfully injured shareholders. See 11 M. R.S.A. § 8-406, U.C.C. Comment 1. . 11 M.R.S.A. § 8-406(1) provides: “Where a person acts as authenticating trustee, transfer agent, registrar or other agent for an issuer in the registration of transfers of its securities or in the issue of new securities or in the cancellation of surrendered securities, * * * :¡! * (b) He has with regard to the particular functions he performs the same obligation to the holder or owner of the security and has the same rights and privileges as the issuer has in regard to those functions.” . The correspondence between plaintiffs, their broker and the Bank make it clear that with regard to both the 1968 and 1970 requests for legend removal, the Bank was well aware that plaintiffs desired to promptly attempt to transfer their shares" }, { "docid": "20558639", "title": "", "text": "stock which heretofore they were attempting to transfer on behalf of a customer in Denver, Colorado * * * We have instructed Bankers * * * to return without transfer these certificates to Bache * * * ” The foregoing constituting the Court’s findings of fact, the Court makes the following conclusions of law, Rule 52(a), F.R.Civ.P.; Under New York. law as it was prior to the adoption of Article 8 of the Uniform Commercial Code, the plaintiff (as purchaser) had the right to have its shares registered for transfer on the books of the corporation, Cooper v. Gossett, 263 N.Y. 491, 189 N.E. 562 (1934) ; Casey v. Kastel, 237 N.Y. 305, 142 N.E. 671, 31 A.L.R. 995 (1924); Travis v. Knox Terpezone, 215 N.Y. 259, 109 N.E. 250, L.R.A.1916A, 542 (1915); see in general, N.Y. Law Revision Commission, Study of Uniform Commercial Code, Article 8 110 (1955) (hereinafter cited as Commission Study), if he was a good faith purchaser for value, without notice of any facts making the transfer wrongful, see Jackson Heights Courts v. 171 Twenty-Fourth Street, 83 N.Y.S.2d 424 (Sup.Ct.1948), modified, 274 App. Div. 1070, 85 N.Y.S.2d 618, aff’d, 299 N.Y. 650, 87 N.E.2d 54 (1949), Mason v. Public National Bank & Trust Co. of New York, 262 App.Div. 249, 28 N.Y.S.2d 416 (1941), aff’d, 287 N.Y. 809, 41 N.E.2d 91 (1942), Commission Study at 112. At trial, Harwyn put into issue the plaintiff’s good faith by showing the circumstances under which the plaintiff took the 8100 shares of Harwyn stock as pledges and from which the plaintiff should have become aware or been put on notice that a transfer of the shares of Harwyn stock might be wrongful under the 1933 Act, see S.E.C. v. Guild Films Co., 279 F.2d 485 (2d Cir.), cert. denied sub nom. Santa Monica Bank v. S.E.C., 364 U.S. 819, 81 S.Ct. 52, 5 L.Ed.2d 49 (1960); also, see Sargent, Pledges and Foreclosure Rights under the Securities Act of 1933, 45 Va. L.Rev. 885 (1959); a failure to inquire further where circumstances put one on notice of a wrongful transfer" }, { "docid": "12021002", "title": "", "text": "McENTEE, Circuit Judge. In this diversity action, plaintiffs (Dr. and Mrs. Kenler) appeal from a district court judgment which granted defendant’s (Canal National Bank) motion for summary judgment. The Ken-lers are presently the owners of 7,087 shares of “legended” investment stock of the now bankrupt Maine Insurance Company (“the Company”). In prosecuting this suit, they seek to hold the Bank, as transfer agent for the Company liable in damages for its alleged wrongful refusal to remove the restrictive legends on their shares, which refusal resulted in the inability of the plaintiffs to sell said shares prior to the time the Company became bankrupt. The relevant facts can be summarized as follows. In 1964 and 1965 Dr. Kenler acquired certain investment shares in the Company pursuant to an unregistered “private offering.” At the time of issuance, the stock certificates bore a restrictive legend, commonly placed upon shares acquired in such a manner, which provided : The shares represented by this certificate have not been registered under the Securities Act of 1933. The shares have been acquired for investment and may not be reoffered, sold, transferred, pledged or hypothecated in the absence of an effective Registration Statement for the shares under the Securities Act of 1933 or a prior opinion of counsel, satisfactory to the Company, that registration is not required under that Act. During the latter part of 1966 Dr. Ken-ler became seriously ill and eventually his illness compelled him to give up medical practice and retire to Florida with his wife. At that time, Kenler transferred most of his stock in the Company to his wife, retaining only a small percentage of the original shares. In the fall of 1968 Mrs. Kenler sought to sell her stock in order to supplement her husband's depleted income, and to assist in meeting his increasing medical expenses. On October 14, 1968, Mrs. Ken-ler, in a letter to the Securities and Exchange Commission, explained her situation and requested a “No Action” letter on the proposed sale of her shares. Two months later, Special Counsel for the SEC Division of Corporation Finance replied, and, in" }, { "docid": "12021018", "title": "", "text": "to various prospective purchasers, who, of course, could not be procured until after the legends had been removed. . A “bona fide purchaser” is defined as “a purchaser for value in good faith and without notice of any adverse claim who takes delivery of a security in bearer form or of one in registered form issued to him or endorsed to him or in blank.” 11 M.R.S.A. § 8-302 (emphasis added). Even under our arguendo assumption that requests for legend removal constitute § 8-401(1) requests for transfer, it is clear that the Kenlers, who would actually receive the unlegended certificates, can in no way be said to be purchasers for value. . In order to accomplish a transfer, the restrictive legend required the existence of either a valid Registration Statement covering the shares, or an opinion of counsel that registration was not required. Since it is app'arent that no valid Registration Statement was in effect at the time of each requested transfer, it was incumbent upon plaintiffs to supply an appropriate opinion of counsel in order to make their requests for transfer “rightful.” . See footnote 1, supra. . The district court correctly concluded that: “The three cases upon which plaintiffs rely are plainly distinguishable. In Kanton v. United States Plastics, Inc., 248 F.Supp. 353 (D.N.J.1965), the plaintiff supplied a favorable opinion of counsel and a “No Action” letter from the SEC. See Petrillo v. Seven Arts Productions, Ltd., [CCH Fed.Sec.L.Rep. par. 91,921 (Sup.Ct.N.Y. Apr. 7, 1967)] at 96,172. As in Kanton, the court in Riskin v. National Computer Analysts, Inc., 62 Misc.2d 605, 308 N.Y.S.2d 985 (Sup.Ct.1970), modified, 37 A.D.2d 952, 326 N.Y.S.2d 419 (App.Div.1971), nowhere held that a “no action” letter constituted the “opinion of counsel to the company” specified by the restrictive legend on the plaintiff’s share certificates. Finally, Gasarch v. Ormand Industries, Inc., 346 F.Supp. 550 (S.D.N. Y.1972) did not present the issue of whether or not a “no action” letter constitutes the required opinion of counsel within the meaning of a restrictive legend. . . . To the extent that Gasarch may be read to" }, { "docid": "20558640", "title": "", "text": "Courts v. 171 Twenty-Fourth Street, 83 N.Y.S.2d 424 (Sup.Ct.1948), modified, 274 App. Div. 1070, 85 N.Y.S.2d 618, aff’d, 299 N.Y. 650, 87 N.E.2d 54 (1949), Mason v. Public National Bank & Trust Co. of New York, 262 App.Div. 249, 28 N.Y.S.2d 416 (1941), aff’d, 287 N.Y. 809, 41 N.E.2d 91 (1942), Commission Study at 112. At trial, Harwyn put into issue the plaintiff’s good faith by showing the circumstances under which the plaintiff took the 8100 shares of Harwyn stock as pledges and from which the plaintiff should have become aware or been put on notice that a transfer of the shares of Harwyn stock might be wrongful under the 1933 Act, see S.E.C. v. Guild Films Co., 279 F.2d 485 (2d Cir.), cert. denied sub nom. Santa Monica Bank v. S.E.C., 364 U.S. 819, 81 S.Ct. 52, 5 L.Ed.2d 49 (1960); also, see Sargent, Pledges and Foreclosure Rights under the Securities Act of 1933, 45 Va. L.Rev. 885 (1959); a failure to inquire further where circumstances put one on notice of a wrongful transfer constitutes a lack of good faith, Mason v. Public National Bank, supra, and the plaintiff would thereby be charged with knowledge of the wrongfulness of the transfer which an inquiry would have revealed. However, even if plaintiff acted in good faith, Harwyn could refuse to register the shares upon presentation if it had reasonable grounds for doing so, Luitwieler v. Luitwieler Pumping Engine Co., 118 Misc. 192, 192 N.Y.S. 891, 893 (Sup.Ct.1922), see Doliner v. Eastern Can Co., (N.Y.Law Journal, p. 17, .col. 4, June 2, 1965), aff’d 25 A.D.2d 719, 268 N.Y.S.2d 970 (1966), Commission Study at 112, 119, such as having received information of a possibly wrongful transfer because of doubtful title, Hillary Holding Corporation v. Brooklyn Jockey Club, 88 N.Y.S.2d 198, 201 (Sup. Ct.1949), cf. Van Schaick v. National City Bank of New York, 245 App.Div. 525, 283 N.Y.S. 372 (1935). It is clear that under the circumstances here, Harwyn had reasonable grounds to refuse to authorize the transfer of shares when they were first presented by Bache to Bankers on February" }, { "docid": "22321739", "title": "", "text": "broad interpretation of the U.C.C. phrase “imposed by the issuer” to include as well restrictions arising out of the Securities Act of 1933. See Edina State Bank, 487 F.2d at 644-45. There it was held that a plaintiff bank was entitled to maintain a conversion action under Colorado’s U.C.C. § 8-204 against a corporate issuer of privately placed securities that had not noted applicable Securities Act restrictions on its stock certificates. The corporation, Mr. Steak, had issued stock in a private offering to an individual named Price, who used the shares to secure a loan with the Edina Bank. When Price defaulted on his loan, the bank attempted to sell the stock it held as collateral, but was barred from doing so by the unlegended Securities Act restrictions on the shares. See id. at 642-43. The bank sued Mr. Steak and its transfer agent. The district court held for the defendants because the Edina Bank had failed to make any inquiry with the defendants, the S.E.C., or any brokers regarding the stock. See id. at 643-44. In reversing, the Tenth Circuit construed § 8-204’s requirements of notice broadly and found that Mr. Steak had not fulfilled its obligations under the U.C.C., and determined that the protection of the statute “extended to all against an unnoted restriction.” Id. at 644. The court, in so holding, reasoned that the restrictions arising out of the Securities Act applied only because Mr. Steak had chosen to offer its stock in a private placement, and thus the restriction was in effect “imposed by the issuer” within the meaning of § 8-204. When the holding in Edina State Bank was cited to a Southern District judge in DeWitt v. American Stock Transfer Co., 440 F.Supp. 1084 (S.D.N.Y.1977) — involving a parallel Delaware U.C.C. provision — he refused to follow it. The district court reasoned that since no other case equated restrictions imposed by the issuer with those arising from the federal securities laws, the Edina State Bank rationale should not be extended beyond its facts, that is, a private placement by the issuer of its own" }, { "docid": "20558641", "title": "", "text": "constitutes a lack of good faith, Mason v. Public National Bank, supra, and the plaintiff would thereby be charged with knowledge of the wrongfulness of the transfer which an inquiry would have revealed. However, even if plaintiff acted in good faith, Harwyn could refuse to register the shares upon presentation if it had reasonable grounds for doing so, Luitwieler v. Luitwieler Pumping Engine Co., 118 Misc. 192, 192 N.Y.S. 891, 893 (Sup.Ct.1922), see Doliner v. Eastern Can Co., (N.Y.Law Journal, p. 17, .col. 4, June 2, 1965), aff’d 25 A.D.2d 719, 268 N.Y.S.2d 970 (1966), Commission Study at 112, 119, such as having received information of a possibly wrongful transfer because of doubtful title, Hillary Holding Corporation v. Brooklyn Jockey Club, 88 N.Y.S.2d 198, 201 (Sup. Ct.1949), cf. Van Schaick v. National City Bank of New York, 245 App.Div. 525, 283 N.Y.S. 372 (1935). It is clear that under the circumstances here, Harwyn had reasonable grounds to refuse to authorize the transfer of shares when they were first presented by Bache to Bankers on February 21, 1964. At that time, both Bankers and Harwyn had been notified in written form by the S.E.C. that shares of Harwyn stock might be presented for transfer by persons in a control relationship with Harwyn. Harwyn and Bankers were, thus, aware of a proposed transfer which might be a “wrongful” transfer under the 1933 Act, see Sargent, Pledges and Foreclosures, supra; S.E.C. v. Guild Films Co., supra. Thereafter, Bache delivered 1000 of plaintiff’s shares to Bankers for transfer, indicating, with respect to the ownership of the shares, only that the owner was from Denver, Colorado. By this time, the' S.E.C. had told Harwyn that the control group about which the S.E.C. was concerned originated from Denver, among other places. Knowing that the owner was from Denver, Harwyn acted reasonably in seeking further information as to the identity of the owner and a legal opinion from plaintiff’s counsel that the shares were not being tendered by a “control group.” From the time that the shares were first received by Bache and tendered to Bankers on" }, { "docid": "20558642", "title": "", "text": "21, 1964. At that time, both Bankers and Harwyn had been notified in written form by the S.E.C. that shares of Harwyn stock might be presented for transfer by persons in a control relationship with Harwyn. Harwyn and Bankers were, thus, aware of a proposed transfer which might be a “wrongful” transfer under the 1933 Act, see Sargent, Pledges and Foreclosures, supra; S.E.C. v. Guild Films Co., supra. Thereafter, Bache delivered 1000 of plaintiff’s shares to Bankers for transfer, indicating, with respect to the ownership of the shares, only that the owner was from Denver, Colorado. By this time, the' S.E.C. had told Harwyn that the control group about which the S.E.C. was concerned originated from Denver, among other places. Knowing that the owner was from Denver, Harwyn acted reasonably in seeking further information as to the identity of the owner and a legal opinion from plaintiff’s counsel that the shares were not being tendered by a “control group.” From the time that the shares were first received by Bache and tendered to Bankers on February 21, 1964, until the shares were withdrawn by Bache on March 16, 1964, a period of 24 days, including 17 market days, had elapsed. This is not an unreasonable time for Harwyn to refuse to transfer the shares, pending receipt of further information which it had a right to request. Compare U.C.C. § 8-403(2) (30 days presumed to be reasonable). Therefore, plaintiff has not proved that Harwyn’s refusal to transfer the shares was wrongful and in violation of its duty to plaintiff; and Harwyn has established that its refusal to transfer the shares and its request for more information as to ownership and control was reasonable. The Clerk may enter judgment for defendant Harwyn dismissing the complaint with costs. It is so ordered. . Some of the street name certificates were registered in the name of Bache. William J. Goldenblum, Regional Counsel for Bache, who testified for plaintiff at trial, stated that it was very unusual for a Bache customer to have securities in his possession registered in Bache’s street name. He stated that," } ]

[ { "docid": "22225826", "title": "", "text": "probable jurisdiction on March 1, 1971. 401 U. S. 934. The Central Baptist Church of Miami, Florida, Inc., is the owner of nearly a full square block of land in downtown Miami which is occupied by church buildings and an offstreet parking lot. The parking facilities are utilized by numerous persons pursuing a variety of church activities. These facilities are also used as a commercial parking lot every day except Sunday. At the time this suit was instituted and decided in the District Court, Fla. Stat. § 192.06 (4) provided for exemption from taxation of: “All houses of public worship and lots on which they are situated, and all pews or steps and furniture therein, every parsonage and all burying grounds not owned or held by individuals or corporations for speculative purposes, tombs and right of burial . . . .” Prior to the decision of the District Court, the Florida Supreme Court had held, in a case involving the same property as is involved here, that church parking lots retain their full tax exemption under state law even though they may be used for commercial as well as church purposes. Central Baptist Church v. Dade County, 216 So. 2d 4 (1968). This led to the constitutional challenge in the District Court. At its 1971 Regular Session, the Florida Legislature repealed § 196.191 (the 1969 successor to § 192.06) and enacted new legislation, approved June 15, 1971, effective December 31, 1971, which provides, in relevant part, that church property is exempt from taxation only if the property is used predominantly for religious purposes and only “to the extent of the ratio that such predominant use bears to the non-exempt use.” Fla. Stat. § 196.192 (2). We must review the judgment of the District Court in light of Florida law as it now stands, not as it stood when the judgment below was entered. Hall v. Beals, 396 U. S. 45, 48 (1969); United States v. Alabama, 362 U. S. 602, 604 (1960); cf. Thorpe v. Housing Authority, 393 U. S. 268, 281-282 (1969); Hines v. Davidowitz, 312 U. S. 52," } ]

[ { "docid": "1956975", "title": "", "text": "continue to operate under the terms of the franchise or license until its expiration. These subsections are preempted by § 337.401(3)(a), which prohibits municipalities from requiring telecommunications companies to enter franchises or licenses. Subsection (3), which states that the passage of -the ordinance does not affect persons with existing leases of property in the rights-of-way, is not preempted. Section 20-21. Application for a Franchise: This section sets out the process an applicant must undergo and the criteria an applicant must meet in order to obtain a franchise to operate a telecommunications facility in the rights-of-way in Coral Springs, and also sets out the formula for the calculation of the franchise fee. While Coral Springs does have the right under § 337.401(3)(a) to request some of the information and credentials from a telecommunications company that it requests under section 20-21, it clearly may not do so in the context of a franchise application, and it may not charge a franchise fee. This section is preempted in its entirety. 2. Preemption of Specific Sections of Palm Beach Ordinance 16-97 by the Transitional Version of § 337.401 The scope of ordinance 16-97 is significantly broader than that of ordinance 97-114, as it regulates telecommunications facilities and services, private communications systems, cable systems, and open video systems. The only provisions of the ordinance subject to preemption by § 337.401, however, are those pertaining to the regulation of telecommunications facilities and services, as those terms are defined in the ordinance, and so our analysis of the ordinance is limited to its effects on those areas. Title I, Section 2. Franchise Required: This section requires the operators of telecommunications facilities to obtain franchises prior to providing telecommunications services within Palm Beach. It is preempted by § 337.401(3)(a), which explicitly prohibits municipalities from requiring telecommunications companies to enter licenses, franchises, or other agreements as a condition of using the public right-of-way to provide telecommunications services. Title I, Section S. Compensation Required: This section requires the operators of telecommunications facilities to pay the following fees: (i) a fee for applying for a franchise; (ii) additional compensation should Palm" }, { "docid": "1956974", "title": "", "text": "also preempted. Subsection (9) “Retention of Records,” and subsection (10) “Reports,” require the operators of telecommunications facilities to retain records and prepare reports as requested to aid Coral Springs in determining if the facilities are in compliance with the ordinance. These requirements are valid under § 337.401(3)(b) as they are necessary to Coral Springs’s regulation of the rights-of-way. Subsection (11) “Maps” requires operators of telecommunications facilities to “maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the rights-of-way.” This requirement is valid under § 337.401(3)(b) as a reasonable means by which the City can ensure that future construction in the rights-of-way does not interfere with or damage existing communications lines and facilities. Section 20-7. Transitional Provisions: Subsection (1) addresses the process by which persons operating telecommunications facilities without a franchise or license at the time of the ordinance’s enactment should file for a franchise or license, and subsection (2) states that persons holding franchises or licenses at the time of the ordinance’s enactment may continue to operate under the terms of the franchise or license until its expiration. These subsections are preempted by § 337.401(3)(a), which prohibits municipalities from requiring telecommunications companies to enter franchises or licenses. Subsection (3), which states that the passage of -the ordinance does not affect persons with existing leases of property in the rights-of-way, is not preempted. Section 20-21. Application for a Franchise: This section sets out the process an applicant must undergo and the criteria an applicant must meet in order to obtain a franchise to operate a telecommunications facility in the rights-of-way in Coral Springs, and also sets out the formula for the calculation of the franchise fee. While Coral Springs does have the right under § 337.401(3)(a) to request some of the information and credentials from a telecommunications company that it requests under section 20-21, it clearly may not do so in the context of a franchise application, and it may not charge a franchise fee. This section is preempted in its entirety. 2. Preemption of Specific Sections of Palm Beach" }, { "docid": "1956965", "title": "", "text": "when the judgment below was entered'.\" Naturist Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1519-20 (11th Cir.1992) (quoting Diffenderfer v. Cent. Baptist Church, 404 U.S. 412, 414, 92 S.Ct. 574, 575, 30 L.Ed.2d 567 (1972)). Accordingly, we can only conduct our state-law preemption analysis under the version of the statute that is currently in effect-the transitional version of § 337.401. 1. Preemption of Specific Sections of Coral Springs Ordinance 97-114 by the Transitional Version of § 337.401 As a preliminary matter, it is necessary to define some of the key terms as they are used in the state law and in the ordinance. Section 337.401 addresses municipal regulation of “telecommunications companies,” which are defined in § 364.02(12) as “every corporation, partnership, and person ... offering two-way telecommunications service to the public for hire,” but explicitly not including “[a]n entity which provides a telecommunications facility exclusively to a certificated telecommunications company” or “[a] private computer data network company not offering service to the public for hire.” Ordinance 97-114, however, refers to “telecommunications facilities,” which it defines in section 20-1(20) as “facilities] that [are] used to provide one or more telecommunications services, any portion of which occupies public rights of way.” “Telecommunications services” are defined in section 20-1(21) as “the transmission for hire, of information in electronic or optical form, including, but not limited to, voice, video, or data ... but does not include over-the-air broadcasts to the public-at-large from facilities licensed by the Federal Communications Commission or any successor thereto, cable service or open video service.” Telecommunications facilities are distinguished from “private communications systems,” which are defined in section 20-1(15) as “facilities] placed in whole or in part in the public right of way for the provision of communications in connection with a person’s business, but not encompassing in any respect the provision of telecommunications services.” The ordinance uses the term “communications facility,” defined in seetion 20-1(5), to refer to both telecommunications facilities and private communications systems. It is clear from these definitions that provisions of ordinance 97-114 governing “telecommunications facilities” are subject to preemption by § 337.401’s limitations on municipal" }, { "docid": "1957005", "title": "", "text": "the Florida Legislature passed S.B. 1878, which provides that the LOST and the other October amendments envisioned in the Simplification Act will take effect on 1 October 2001, with certain changes and clarifications. As of the date of this opinion’s issuance, this bill has not yet been signed into law by the Governor of Florida. . While it is possible for the post-judgment amendment of a challenged statute to render the appeal of that judgment moot, see Fillyaw, 958 F.2d at 1519-20, in this case, a live controversy remains as to whether the Cities' ordinances are preempted under the Simplification Law’s transitional amendments to § 337.401. . We decline to apply a limiting construction to save the valid portions of the information request provision, because “as a federal court, we must be particularly reluctant to rewrite the terms of a state statute.” Dimmitt v. City of Clearwater, 985 F.2d 1565, 1572 (11th Cir.1993) (emphasis omitted). . BellSouth has not claimed that Coral Springs is, in fact, enforcing the terms of this subsection in a manner inconsistent with § 337.401. . Tille I, section 1.23 defines ''telecommunications facility” as \"a facility that is used to provide one or more telecommunications services, any portion of which occupies the public rights of way.\" Section 1.24 defines \"telecommunications services” as \"the transmission for hire, of information in electronic or optical form, including, but not limited to, voice, video, or data,” and includes \"telephone service but does not include over-the-air broadcasts to the public-at-large from facilities licensed by the Federal Communications Commission.” . BellSouth has not claimed that Palm Beach is, in fact, currently charging it the franchise fee and associated costs. . Codified, at 47 U.S.C. § 253. . The Sixth Circuit has held that the question of whether § 253 creates a private cause of action is a question affecting our subject-matter jurisdiction. TCG Detroit, 206 F.3d at 622. If it were a jurisdictional matter, we would be required to address it first, before proceeding to the issue of § 253's preemptive scope. See Garcia-Mir v. Smith, 766 F.2d 1478, 1486 (11th Cir.1985)" }, { "docid": "1956963", "title": "", "text": "the language of the 1998 version’s subsections (3) and (4) pertaining to taxes and fees that may be levied on telecommunications companies in the meantime. Section 337.401 is scheduled to be amended again on 1 October 2001, removing the language in subsections (3)(e) and (3)(f) entirely to reflect the implementation of the new LOST scheme. See 2000 Fla. Laws ch. 00-260, § 51. The LOST is intended to replace the patchwork system by which each municipality had set its own formula (within the bounds of prior versions of § 337.401) for how it would tax telecommunications companies’ use of the public rights-of-way. In § 12 of the Simplification Law, codified at Fla. Stat. § 202.20 (Supp.2001), the Florida legislature delegated to the Revenue Estimating Conference (“REC”) the responsibility of determining, based on the factors prescribed in that section, what the local communications tax rate. should be for each municipality and county in the state. Recognizing the difficulties inherent in this task, the Florida legislature structured the Simplification Law to prepare for the contingency that the REC would not be able to establish acceptable rates for the LCSTs: unless the Florida legislature acts before 30 June 2001, on that date section 58 of the Simplification Law will repeal the transitional amendments to § 337.401, as well as the 1 October 2001 amendments to § 337.401 and the other sections implementing the LCST, and § 59 will reinstate the 1998 version of § 337.401 (with only minor changes) on the same day. Presumably, if the REC is successful in setting the rates for the LCSTs, the Florida Legislature will repeal §§58 and 59 before 30 June 2001 so that the October amendments, which comprise the essence of the Simplification Law, will go into effect as scheduled. That is the overall plan under the Simplification Law; however, \"[w]here a statute is amended after the entry of judgment in the trial court, but before the decision of the appellate court, the appellate court must `review the judgment of the district court in light of [the] law as it now stands, not as it stood" }, { "docid": "1956962", "title": "", "text": "such roads or rights-of-way, must be reasonable and nondiseriminatory, and may include only those matters necessary to manage the roads or rights-of-way,” id. at § 337.401(3)(b). The other significant feature of the transitional version of § 337.401, and the fea ture that indicates why a transitional provision is necessary, is the requirement that each municipality make an election that will affect the rate it will be able to charge if the local communications services tax (“LOST”), authorized under § 11 of the Simplification Law, takes effect on 1 October 2001. Section 387.401(3)(c)(1) requires municipalities to choose whether they will collect certain limited permit fees from communications providers for use of the public rights-of-way; if a municipality chooses to charge permit fees, it must reduce the rate of its LOST by 0.12%, but if it chooses not to charge such fees, it may increase the rate by 0.12%. Because the LOST does not take effect until 1 October 2001, if it takes effect at all, the transitional § 337.401 carries over, in subsections (3)(e) and (3)(f), the language of the 1998 version’s subsections (3) and (4) pertaining to taxes and fees that may be levied on telecommunications companies in the meantime. Section 337.401 is scheduled to be amended again on 1 October 2001, removing the language in subsections (3)(e) and (3)(f) entirely to reflect the implementation of the new LOST scheme. See 2000 Fla. Laws ch. 00-260, § 51. The LOST is intended to replace the patchwork system by which each municipality had set its own formula (within the bounds of prior versions of § 337.401) for how it would tax telecommunications companies’ use of the public rights-of-way. In § 12 of the Simplification Law, codified at Fla. Stat. § 202.20 (Supp.2001), the Florida legislature delegated to the Revenue Estimating Conference (“REC”) the responsibility of determining, based on the factors prescribed in that section, what the local communications tax rate. should be for each municipality and county in the state. Recognizing the difficulties inherent in this task, the Florida legislature structured the Simplification Law to prepare for the contingency that the" }, { "docid": "1956958", "title": "", "text": "the district court’s decision de novo.” Lewis v. Brunswick Corp., 107 F.3d 1494, 1498 (11th Cir.1997). Because federal preemption of a state or local law is premised on the Supremacy Clause of the United States Constitution, see Bosarge v. United States Dep’t of Educ., 5 F.3d 1414, 1419 (11th Cir.1993), and because of the longstanding principle that federal courts should avoid reaching constitutional questions .if there are other grounds upon which a case can be decided, Santamorena v. Ga. Military Coll, 147 F.3d 1337, 1343 (11th Cir.1998), we first decide whether the ordinances are preempted by Florida state law before considering whether they are federally preempted by the Act. Further, because each City has included a severability clause in its ordinance stating it is the City’s intention that the remainder of the ordinance remain in effect if part of the ordinance is invalidated, we must address each relevant section of each ordinance in turn, reserving judgment on the preemption of the ordinances as a whole until both the state and federal preemption analyses have been completed. A. Preemption by Florida State Law Under Florida Statutes § 364.01(2), the Florida Public Service Commission (“FPSC”) has jurisdiction over the regulation of telecommunications companies within the state. Local governments are preempted from regulating telecommunications companies except to the extent provided in § 337.401, which is the provision of state law that historically has governed municipalities’ power to regulate and tax telecommunications companies’ use of the public rights-of-way. Our analysis of § 337.401 in this case is complicated somewhat by the fact that the statute has been amended twice since these lawsuits were filed, and future amendments are scheduled. When these lawsuits were initiated in August 1997 and April 1998, the text of § 337.401 had stood unaltered since 1994. In May 1998, however, § 337.401 was substantially amended. See 1998 Fla. Laws ch. 98-147. The district court duly took the 1998 amendments to § 337.401 into account when deciding the state-law preemption question in its summary-judgment orders, which issued in January and September of 1999. After the district court had entered its final" }, { "docid": "1956961", "title": "", "text": "number of miles of cable laid in the public rights-of-way, as well as certain other fees as compensation for the direct, physical use of the rights-of-way and the administrative costs of regulating the rights-of-way. Id. at § 337.401(4). The impetus for the Simplification Law appears to have been, in large part, the need to bring Florida law into compliance with the Telecommunications Act of 1996. To this end, the Simplification Law mapped out a complicated schedule of amendments to the Florida Statutes, including “transitional” amendments to § 337.401, which took effect on 1 January 2001. 2000 Fla. Laws ch. 00-260, § 50; Fla. Stat. § 337.401 (Supp.2001). The transitional version of § 337.401 severely curtails municipal authority over telecommunications companies by prohibiting municipalities from requiring telecommunications companies to enter into a “license, franchise, or other agreement” as a condition of using the public rights-of-way, id. at § 337.401(3)(a), and by requiring that any municipal regulations pertaining to telecommunications companies’ use of the public rights-of-way “must be related to the placement or maintenance of facilities in such roads or rights-of-way, must be reasonable and nondiseriminatory, and may include only those matters necessary to manage the roads or rights-of-way,” id. at § 337.401(3)(b). The other significant feature of the transitional version of § 337.401, and the fea ture that indicates why a transitional provision is necessary, is the requirement that each municipality make an election that will affect the rate it will be able to charge if the local communications services tax (“LOST”), authorized under § 11 of the Simplification Law, takes effect on 1 October 2001. Section 387.401(3)(c)(1) requires municipalities to choose whether they will collect certain limited permit fees from communications providers for use of the public rights-of-way; if a municipality chooses to charge permit fees, it must reduce the rate of its LOST by 0.12%, but if it chooses not to charge such fees, it may increase the rate by 0.12%. Because the LOST does not take effect until 1 October 2001, if it takes effect at all, the transitional § 337.401 carries over, in subsections (3)(e) and (3)(f)," }, { "docid": "1956964", "title": "", "text": "REC would not be able to establish acceptable rates for the LCSTs: unless the Florida legislature acts before 30 June 2001, on that date section 58 of the Simplification Law will repeal the transitional amendments to § 337.401, as well as the 1 October 2001 amendments to § 337.401 and the other sections implementing the LCST, and § 59 will reinstate the 1998 version of § 337.401 (with only minor changes) on the same day. Presumably, if the REC is successful in setting the rates for the LCSTs, the Florida Legislature will repeal §§58 and 59 before 30 June 2001 so that the October amendments, which comprise the essence of the Simplification Law, will go into effect as scheduled. That is the overall plan under the Simplification Law; however, \"[w]here a statute is amended after the entry of judgment in the trial court, but before the decision of the appellate court, the appellate court must `review the judgment of the district court in light of [the] law as it now stands, not as it stood when the judgment below was entered'.\" Naturist Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1519-20 (11th Cir.1992) (quoting Diffenderfer v. Cent. Baptist Church, 404 U.S. 412, 414, 92 S.Ct. 574, 575, 30 L.Ed.2d 567 (1972)). Accordingly, we can only conduct our state-law preemption analysis under the version of the statute that is currently in effect-the transitional version of § 337.401. 1. Preemption of Specific Sections of Coral Springs Ordinance 97-114 by the Transitional Version of § 337.401 As a preliminary matter, it is necessary to define some of the key terms as they are used in the state law and in the ordinance. Section 337.401 addresses municipal regulation of “telecommunications companies,” which are defined in § 364.02(12) as “every corporation, partnership, and person ... offering two-way telecommunications service to the public for hire,” but explicitly not including “[a]n entity which provides a telecommunications facility exclusively to a certificated telecommunications company” or “[a] private computer data network company not offering service to the public for hire.” Ordinance 97-114, however, refers to “telecommunications facilities,” which it defines" }, { "docid": "8807775", "title": "", "text": "fee or reasonably regulate the use of the rights-of-way. Fla. Stat. § 337.401(7). The Supreme Court of Florida has long recognized that telephone companies have the right to use the public roads and highways of Florida. Southern Bell Telephone & Tel. Co. v. Ervin, 75 So.2d 796, 798 (Fla.1954). This right is conditioned on the responsibility not to obstruct or interfere with the use of the rights-of-way. Id. at 799. As it turns out, this 1954 holding is consistent with the recent federal and state legislation limiting regulation of telecommunications by local governments to reasonable regulation of the rights-of-way. C. Ordinance 16-97 As outlined above, while federal and state law preempt local control over telecommunication companies, both Congress and the Florida legislature specifically excluded from preemption municipal control over rights-of-way. In addition, both state and federal law allow municipalities to collect a 1% gross receipts fee from telecommunication companies that use rights-of-way in that locality, as well as the recovery of certain costs incurred by the municipality as a result of the specific use of the right-of-way. Bellsouth’s arguments gloss over this specific exclusion from preemption for municipalities in both federal law and state law. While BellSouth relies upon the otherwise exclusive jurisdiction provided to the Florida Public Service Commission, Chapter 364 specifically states that “the authority and powers granted in Sections 166.231(9) and 337.401” are not affected by this Chapter. Florida Statutes § 364.02(2). At the same time, the Town attempts to distinguish the instant ordinance from the one at issue in the Coral Springs case by noting that the fee to be imposed is not specified in the Town’s ordinance. The fact that the fee is not specified does not change the fact that the compensation provision as to telecommunications service companies is preempted by state law. Following the plain language of both the state and federal statutes, this Court holds that the Town of Palm Beach can only regulate the use of its rights-of-way, and cannot collect more than one percent of the gross receipts on recurring local service revenue for services provided within the municipality limits," }, { "docid": "1956960", "title": "", "text": "judgment in both cases, the Florida legislature amended § 337.401 again with the passage of the Communications Services Tax Simplification Law (“Simplification Law”), 2000 Fla. Laws ch. 00-260. In order to understand the changes envisioned in the Simplification Law, we must begin with an assessment of the law that predated it. Under the version of § 337.401 as amended in 1998, it was clear that municipalities were prohibited from exercising their authority to manage the public rights-of-way in such a way as to exert regulatory control over matters that fell under the exclusive jurisdiction of the FPSC or the Federal Communications Commission (“FCC”). Fla. Stat. § 337.401(6) (Supp.1998). Municipalities could, however, require telecommunications companies to pay fees of up to “one percent of the gross receipts on recurring local service revenues for services provided within the corporate limits of the municipality” as consideration for the right to occupy the public rights-of-way. Id. at § 337.401(3). Municipalities also had the power to enter into agreements with telecommunications companies requiring them to pay fees based on the number of miles of cable laid in the public rights-of-way, as well as certain other fees as compensation for the direct, physical use of the rights-of-way and the administrative costs of regulating the rights-of-way. Id. at § 337.401(4). The impetus for the Simplification Law appears to have been, in large part, the need to bring Florida law into compliance with the Telecommunications Act of 1996. To this end, the Simplification Law mapped out a complicated schedule of amendments to the Florida Statutes, including “transitional” amendments to § 337.401, which took effect on 1 January 2001. 2000 Fla. Laws ch. 00-260, § 50; Fla. Stat. § 337.401 (Supp.2001). The transitional version of § 337.401 severely curtails municipal authority over telecommunications companies by prohibiting municipalities from requiring telecommunications companies to enter into a “license, franchise, or other agreement” as a condition of using the public rights-of-way, id. at § 337.401(3)(a), and by requiring that any municipal regulations pertaining to telecommunications companies’ use of the public rights-of-way “must be related to the placement or maintenance of facilities in" }, { "docid": "1956973", "title": "", "text": "reserved to the municipality under § 337.401(3)(b). Subsection (8) “Access to books and records” grants Coral Springs access to all books and records in a telecommunications company’s possession pertaining to “the construction, operation, or repair of the communications facility,” and “to the extent that the franchise fees or license fees are based upon gross revenue or gross receipts,” Coral Springs claims access to “all books and records related to revenues derived from the operation of the communications facility.” Coral Springs’s power to access documents pertaining to the construction and repair of communications facilities is necessary to its direct regulation of the rights-of-way, and is therefore authorized under § 337.401(3)(b); however, under state law it does not have a right to access books and records relating to “operations,” as that term extends far beyond those matters directly related to the rights-of-way. Further, because the franchise and license fee as applied to telecommunications companies is preempted under § 337.401(3)(a), Coral Springs’s ability to request financial information for the purpose of determining compliance with such a fee is also preempted. Subsection (9) “Retention of Records,” and subsection (10) “Reports,” require the operators of telecommunications facilities to retain records and prepare reports as requested to aid Coral Springs in determining if the facilities are in compliance with the ordinance. These requirements are valid under § 337.401(3)(b) as they are necessary to Coral Springs’s regulation of the rights-of-way. Subsection (11) “Maps” requires operators of telecommunications facilities to “maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the rights-of-way.” This requirement is valid under § 337.401(3)(b) as a reasonable means by which the City can ensure that future construction in the rights-of-way does not interfere with or damage existing communications lines and facilities. Section 20-7. Transitional Provisions: Subsection (1) addresses the process by which persons operating telecommunications facilities without a franchise or license at the time of the ordinance’s enactment should file for a franchise or license, and subsection (2) states that persons holding franchises or licenses at the time of the ordinance’s enactment may" }, { "docid": "8807776", "title": "", "text": "the right-of-way. Bellsouth’s arguments gloss over this specific exclusion from preemption for municipalities in both federal law and state law. While BellSouth relies upon the otherwise exclusive jurisdiction provided to the Florida Public Service Commission, Chapter 364 specifically states that “the authority and powers granted in Sections 166.231(9) and 337.401” are not affected by this Chapter. Florida Statutes § 364.02(2). At the same time, the Town attempts to distinguish the instant ordinance from the one at issue in the Coral Springs case by noting that the fee to be imposed is not specified in the Town’s ordinance. The fact that the fee is not specified does not change the fact that the compensation provision as to telecommunications service companies is preempted by state law. Following the plain language of both the state and federal statutes, this Court holds that the Town of Palm Beach can only regulate the use of its rights-of-way, and cannot collect more than one percent of the gross receipts on recurring local service revenue for services provided within the municipality limits, in addition to the costs allowed by Florida Statutes Section 337.401(4). Thus, those parts of the Ordinance that do not deal directly with managing the rights-of-way are unenforceable as to BellSouth on grounds of preemption. The Court now turns to an analysis of the sections of the ordinance challenged herein: Section 2. Franchise Required: This section is valid, with the exception of a limitation on subsection 2.2. As to telecommunications facility operators, the requirement of a franchise must only be for facilities that are within a public right-of-way. Thus, if a telecommunications company can provide telecommunications services without using the rights-of-way, a municipality has no jurisdiction under federal law to require a franchise. AT & T v. City of Austin, 975 F.Supp. 928 (W.D.Tex.1997). In addition, as to the last sentence of subsection 2.2, even if the rights-of-way are used, the grant of a franchise must only be conditioned on a telecommunications company’s agreement to comply with the Town’s reasonable regulations of its rights-of-way and the fees for use of those rights-of-way. City of Coral" }, { "docid": "8807774", "title": "", "text": "and collection of a reasonable fee for the use thereof. Fla. Stat. § 364.01(2); Fla. Stat. § 337.401. However, state law further restricts municipal regulation of telecommunication companies by limiting the fee allowed to be collected by municipalities from telecommunications companies for the granting of permission to occupy municipal rights-of-way to one percent of the gross receipts on recurring local service revenue for services provided within the corporate limits of the municipality. Fla. Stat. § 337.401(3) and (5). In addition, in 1998, the Florida legislature amended this section to explicitly forbid local governments from “asserting or exercising regulatory control” over telecommunications companies regarding operations, systems, qualifications, services, service quality, service territory, and pricing. Fla. Stat. § 337.401(6). Finally, this 1998 amendment also made clear that any telecommunications company that has obtained permission to occupy or is otherwise lawfully occupying the roads or rights-of-way of a municipality on May 22, 1998, “shall not be required to obtain additional consent to continue such lawful occupation of those roads or rights-of-way,” except that a municipality may impose a fee or reasonably regulate the use of the rights-of-way. Fla. Stat. § 337.401(7). The Supreme Court of Florida has long recognized that telephone companies have the right to use the public roads and highways of Florida. Southern Bell Telephone & Tel. Co. v. Ervin, 75 So.2d 796, 798 (Fla.1954). This right is conditioned on the responsibility not to obstruct or interfere with the use of the rights-of-way. Id. at 799. As it turns out, this 1954 holding is consistent with the recent federal and state legislation limiting regulation of telecommunications by local governments to reasonable regulation of the rights-of-way. C. Ordinance 16-97 As outlined above, while federal and state law preempt local control over telecommunication companies, both Congress and the Florida legislature specifically excluded from preemption municipal control over rights-of-way. In addition, both state and federal law allow municipalities to collect a 1% gross receipts fee from telecommunication companies that use rights-of-way in that locality, as well as the recovery of certain costs incurred by the municipality as a result of the specific use of" }, { "docid": "1956967", "title": "", "text": "power to regulate “telecommunications companies.” Provisions of the ordinance regulating “private communications systems,” however, do not fall within the penumbra of § 337.401. Because no section of the ordinance is preempted by state law as it pertains to private communications systems, our preemption analysis is conducted exclusively in terms of its effect on telecommunications facilities, as that term is defined in the ordinance. We address each relevant section of the ordinance in turn. Section 20-2. Franchise Required: This section requires the operators of telecommunications facilities to obtain franchises prior to providing telecommunications services within Coral Springs. The franchise requirements in subsections (1) and (2) and the license requirements for telecommunications facilities in subsection (3) are flatly preempted by § 337.401(3)(a), which prohibits municipalities from requiring telecommunications companies to enter licenses, franchises, or other agreements as a condition of using the public right-of-way to provide telecommunications services. Section 20-8. Compensation Required: This section requires the operators of telecommunications facilities to pay the greater of an occupancy fee or a franchise fee to Coral Springs as compensation for the use of the public rights-of-way. The franchise fee, which is established in section 20-21(5)(A) as 10% of the gross revenues generated by the operator of the telecommunications facility’s use of the public rights-of-way, is obviously preempted by the prohibition of franchises in § 337.401(3)(a). Section 20-3 states that the occupancy fee, however, “is intended to recover ongoing right-of way costs to the City caused by burdens users place upon the right-of-way,” and is to be established on a per-linear-foot basis for telecommunications facilities located in the rights-of-way. This type of a fee is specifically authorized by state law, but § 337.401(3)(f) establishes several factors that limit the maximum permissible amount of the fee. Thus, the occupancy fee is not facially void under state law, but there remains a question as to whether Coral Springs has in fact limited the rate of the occupancy tax it exacts to comply with the state-law limits outlined in § 337.401(3)(f). Because neither party has presented evidence of whether the actual amount of the occupancy fee Coral Springs" }, { "docid": "1956959", "title": "", "text": "completed. A. Preemption by Florida State Law Under Florida Statutes § 364.01(2), the Florida Public Service Commission (“FPSC”) has jurisdiction over the regulation of telecommunications companies within the state. Local governments are preempted from regulating telecommunications companies except to the extent provided in § 337.401, which is the provision of state law that historically has governed municipalities’ power to regulate and tax telecommunications companies’ use of the public rights-of-way. Our analysis of § 337.401 in this case is complicated somewhat by the fact that the statute has been amended twice since these lawsuits were filed, and future amendments are scheduled. When these lawsuits were initiated in August 1997 and April 1998, the text of § 337.401 had stood unaltered since 1994. In May 1998, however, § 337.401 was substantially amended. See 1998 Fla. Laws ch. 98-147. The district court duly took the 1998 amendments to § 337.401 into account when deciding the state-law preemption question in its summary-judgment orders, which issued in January and September of 1999. After the district court had entered its final judgment in both cases, the Florida legislature amended § 337.401 again with the passage of the Communications Services Tax Simplification Law (“Simplification Law”), 2000 Fla. Laws ch. 00-260. In order to understand the changes envisioned in the Simplification Law, we must begin with an assessment of the law that predated it. Under the version of § 337.401 as amended in 1998, it was clear that municipalities were prohibited from exercising their authority to manage the public rights-of-way in such a way as to exert regulatory control over matters that fell under the exclusive jurisdiction of the FPSC or the Federal Communications Commission (“FCC”). Fla. Stat. § 337.401(6) (Supp.1998). Municipalities could, however, require telecommunications companies to pay fees of up to “one percent of the gross receipts on recurring local service revenues for services provided within the corporate limits of the municipality” as consideration for the right to occupy the public rights-of-way. Id. at § 337.401(3). Municipalities also had the power to enter into agreements with telecommunications companies requiring them to pay fees based on the" }, { "docid": "1956976", "title": "", "text": "Ordinance 16-97 by the Transitional Version of § 337.401 The scope of ordinance 16-97 is significantly broader than that of ordinance 97-114, as it regulates telecommunications facilities and services, private communications systems, cable systems, and open video systems. The only provisions of the ordinance subject to preemption by § 337.401, however, are those pertaining to the regulation of telecommunications facilities and services, as those terms are defined in the ordinance, and so our analysis of the ordinance is limited to its effects on those areas. Title I, Section 2. Franchise Required: This section requires the operators of telecommunications facilities to obtain franchises prior to providing telecommunications services within Palm Beach. It is preempted by § 337.401(3)(a), which explicitly prohibits municipalities from requiring telecommunications companies to enter licenses, franchises, or other agreements as a condition of using the public right-of-way to provide telecommunications services. Title I, Section S. Compensation Required: This section requires the operators of telecommunications facilities to pay the following fees: (i) a fee for applying for a franchise; (ii) additional compensation should Palm Beach’s expenses in evaluating the franchise application exceed the initial application fee; (iii) the costs of any experts or consultants used in evaluating the application; (iv) an annual occupancy fee; and (v) a franchise fee, established in title II of the ordinance. All of the fees associated with a franchise would be preempted by § 337.401(S)(a), which prohibits municipalities from imposing franchise agreements on telecommunications companies. Subsection 3.4, however, includes a savings clause, stating that the franchise fees need not be paid if “State law ... requires otherwise.” Thus, while Palm Beach cannot currently charge any of the fees associated with the franchise provisions of the ordinance, we need not strike down this section on a facial challenge because it is “self-preempting.” This subsection stands as a reservation-of-rights clause in the event that Palm Beach is granted the authority to require franchises of telecommunications companies in the future. The ordinance does not elaborate on the terms of the annual occupancy fee, other than to state in subsection 3.3 that it “may be charged on a" }, { "docid": "1957004", "title": "", "text": "appeal, the Cities challenge the district court’s finding that sections of their ordinances were preempted by Florida state law and by § 253 of the Telecommunications Act of 1996. BellSouth cross-appeals the district court’s decisions not to find the ordinances preempted in their entirety. We hold that specific subsections of the ordinances are preempted by § 337.401 of the Florida Statutes, but that others are valid exercises of local authority under the Florida scheme. We also hold that § 253 of the Act creates a private right of action only for parties seeking preemption of a state or local statute, ordinance, or other regulation that purports to be a management of the public rights-of-way. We further hold that the district court erred when it failed to consider whether the ordinances violated § 253(a). For these reasons, we AFFIRM the district court’s judgments in part, REVERSE in part, and REMAND to the district court for further proceedings. . Pub.L. No. 104-104, 110 Stat 56 (codified in scattered sections of 47 U.S.C.). . On 2 May 2001, the Florida Legislature passed S.B. 1878, which provides that the LOST and the other October amendments envisioned in the Simplification Act will take effect on 1 October 2001, with certain changes and clarifications. As of the date of this opinion’s issuance, this bill has not yet been signed into law by the Governor of Florida. . While it is possible for the post-judgment amendment of a challenged statute to render the appeal of that judgment moot, see Fillyaw, 958 F.2d at 1519-20, in this case, a live controversy remains as to whether the Cities' ordinances are preempted under the Simplification Law’s transitional amendments to § 337.401. . We decline to apply a limiting construction to save the valid portions of the information request provision, because “as a federal court, we must be particularly reluctant to rewrite the terms of a state statute.” Dimmitt v. City of Clearwater, 985 F.2d 1565, 1572 (11th Cir.1993) (emphasis omitted). . BellSouth has not claimed that Coral Springs is, in fact, enforcing the terms of this subsection in a manner" }, { "docid": "1956966", "title": "", "text": "in section 20-1(20) as “facilities] that [are] used to provide one or more telecommunications services, any portion of which occupies public rights of way.” “Telecommunications services” are defined in section 20-1(21) as “the transmission for hire, of information in electronic or optical form, including, but not limited to, voice, video, or data ... but does not include over-the-air broadcasts to the public-at-large from facilities licensed by the Federal Communications Commission or any successor thereto, cable service or open video service.” Telecommunications facilities are distinguished from “private communications systems,” which are defined in section 20-1(15) as “facilities] placed in whole or in part in the public right of way for the provision of communications in connection with a person’s business, but not encompassing in any respect the provision of telecommunications services.” The ordinance uses the term “communications facility,” defined in seetion 20-1(5), to refer to both telecommunications facilities and private communications systems. It is clear from these definitions that provisions of ordinance 97-114 governing “telecommunications facilities” are subject to preemption by § 337.401’s limitations on municipal power to regulate “telecommunications companies.” Provisions of the ordinance regulating “private communications systems,” however, do not fall within the penumbra of § 337.401. Because no section of the ordinance is preempted by state law as it pertains to private communications systems, our preemption analysis is conducted exclusively in terms of its effect on telecommunications facilities, as that term is defined in the ordinance. We address each relevant section of the ordinance in turn. Section 20-2. Franchise Required: This section requires the operators of telecommunications facilities to obtain franchises prior to providing telecommunications services within Coral Springs. The franchise requirements in subsections (1) and (2) and the license requirements for telecommunications facilities in subsection (3) are flatly preempted by § 337.401(3)(a), which prohibits municipalities from requiring telecommunications companies to enter licenses, franchises, or other agreements as a condition of using the public right-of-way to provide telecommunications services. Section 20-8. Compensation Required: This section requires the operators of telecommunications facilities to pay the greater of an occupancy fee or a franchise fee to Coral Springs as compensation" }, { "docid": "8807777", "title": "", "text": "in addition to the costs allowed by Florida Statutes Section 337.401(4). Thus, those parts of the Ordinance that do not deal directly with managing the rights-of-way are unenforceable as to BellSouth on grounds of preemption. The Court now turns to an analysis of the sections of the ordinance challenged herein: Section 2. Franchise Required: This section is valid, with the exception of a limitation on subsection 2.2. As to telecommunications facility operators, the requirement of a franchise must only be for facilities that are within a public right-of-way. Thus, if a telecommunications company can provide telecommunications services without using the rights-of-way, a municipality has no jurisdiction under federal law to require a franchise. AT & T v. City of Austin, 975 F.Supp. 928 (W.D.Tex.1997). In addition, as to the last sentence of subsection 2.2, even if the rights-of-way are used, the grant of a franchise must only be conditioned on a telecommunications company’s agreement to comply with the Town’s reasonable regulations of its rights-of-way and the fees for use of those rights-of-way. City of Coral Springs, 42 F.Supp.2d at 1309; City of Dallas, 8 F.Supp.2d at 592-93. Section S. Compensation Required: Subsections 3.1, 3.3, 3.4, 3.5 and 3.6 are valid in that they concern the purpose, procedures for, and exemptions from the imposition of an allowed fee for use of the rights-of-way. However, Section 3.2 “Every operator must pay,” while distinguishable from the City of Coral Springs case in that no specific fee is imposed, is unenforceable as to telecommunications companies because state law limits the allowable compensation for use of rights-of-way to one percent of the gross receipts on recurring local service revenue for services provided within the corporate limits of the municipality, plus certain costs of disruption and oversight. Fla. Stat. § 337.401(3), (4) and (5). Section A General Conditions Upon Use of Rights-of-Way: This section is generally valid as the reasonable regulation of what happens on the ground within the rights-of-way, such as construction procedures, relocation of facility procedures, etc. This regulation is excluded from preemption by both federal and state law, with certain exceptions and limitations." } ]

[ { "docid": "22841163", "title": "", "text": "threat to anyone’s safety at the time of the arrest or were about to destroy evidence of a crime.” Aplt.App. 178. In a qualified immunity appeal, we are required to consider those facts which the district court found were sufficient to support the denial of the motion for summary judgment. See Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). Our interlocutory jurisdiction is limited to legal questions drawn from facts that are deemed undisputed for appellate purposes. Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Mitchell, 472 U.S. at 528, 105 S.Ct. 2806. We believe our discussion will be clearer if each Plaintiff is discussed separately, along with the actions taken against that Plaintiff. I. Plaintiffs’ Fourth Amendment Claim Against Unreasonable Seizure A. Legal Framework In Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir.2000), we stated “[t]he Supreme Court has identified three types of police/citizen encounters: consensual encounters, investigative stops, and arrests.” “Consensual encounters are not seizures within the meaning of the Fourth Amendment and need not be supported by suspicion of criminal wrongdoing.” Id. An investigative detention is “a seizure within the meaning of the Fourth Amendment but, unlike an arrest, it need not be supported by probable cause.” Id. An officer “can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause.” Id. For an officer to have reasonable suspicion to seize an individual, the officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id. A warrantless arrest is permissible when an officer “has probable cause to believe that a person committed a crime.” Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir.1995). An arrest is distinguished by the involuntary, “highly intrusive” nature of the encounter. Oliver, 209 F.3d at 1186. “[T]he use of firearms, handcuffs, and other forceful techniques” generally exceed the scope of an investigative detention and enter the realm of an" } ]

[ { "docid": "23435397", "title": "", "text": "also was written. DISCUSSION Diaz appeals the trial court’s denial of his motion to suppress evidence discovered after Agents Jordan and Anaipakos stopped him in the convenience store parking lot. Diaz claims that the initial stop was unreasonable because the agents lacked probable cause or a reasonable suspicion of criminal activity, as required by the Fourth Amendment. Diaz further contends that the search of his truck was impermissible because his arrest was not supported by probable cause, his consent to the search was not voluntary, and the search exceeded the scope of his consent. Diaz also argues that the activation of his beeper and the searches of his wallet and address book were unreasonable because agents lacked probable cause to arrest him. Therefore, Diaz argues, the trial court should have suppressed testimony that Agent Jordan recognized his voice, testimony that his beeper sounded when the agents dialed “George’s” number, and evidence of the scraps of paper bearing Agent Jordan’s undercover beeper number. In considering the ruling on the motion to suppress, we review the district court’s findings of fact for clear error. The district court's application of law to those facts is subject to de novo review. United States v. Franklin, 972 F.2d 1253, 1256 (11th Cir.1992). We find no error in the trial court’s factual findings or legal conclusions and affirm the trial court’s denial of Diaz’s motion to suppress. Investigatory Terry Stop Law enforcement officers may briefly detain a person for an investigatory stop if they have a reasonable, articulable suspicion based on objective facts that the person has engaged, or is about to engage, in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Terry rationale allows police to stop a moving car based on a reasonable suspicion that its occupants are violating the law. United States v. Williams, 876 F.2d 1521, 1524 (11th Cir.1989). The reasonable suspicion required for a Terry stop is more than a hunch, at least “some minimal level of objective justification,” taken from the totality of the circumstances. United States v. Sokolow, 490 U.S. 1," }, { "docid": "21675637", "title": "", "text": "discovery of the firearm was made in violation of both the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution. Specifically, Martin argues: (1) the officers lacked reasonable suspicion to stop the car; (2) the interrogation of Martin and Wagoner did not create probable cause to arrest Wagoner; and (3) the search of the car did not satisfy any exception to the warrant requirement because there was no probable cause to search the vehicle, nor was the area behind the passenger seat within Wagoner’s immediate control. In response, the government argues that: (1) the officers had a legal basis to stop Wagoner based on their reasonable suspicion that the crime of loitering for purposes of prostitution was being committed; (2) the officers had probable cause to arrest Wagoner after interrogating her and Martin; (3) independent of the search incident to the arrest, the officers had probable cause to search the vehicle for contraband or evidence of a crime; and (4) the officers had probable cause to arrest Martin for the crime of carrying a concealed deadly weapon. The district court conducted a suppression hearing and thereafter granted Martin’s motion to suppress, based on an analysis of the car stop and the search incident to Wagoner’s arrest. We conclude that the district court erred in finding that the officers lacked reasonable suspicion to justify the stop of Martin’s car and in finding that the officers lacked probable cause to arrest Wagoner. II. ANALYSIS A. Standard of Review In reviewing a district court’s determination on suppression questions, “a district court’s factual findings are accepted unless they are clearly erroneous.... ” United States v. Shamaeizadeh, 80 F.3d 1131, 1135 (6th Cir.1996) (citations omitted). The district court’s “determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.” Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). B. The Car Stop “The Fourth Amendment prohibits unreasonable searches and seizures.” United States v. Obasa, 15 F.3d 603, 606 (6th Cir.1994). However, a brief investigative stop, or Terry stop, by an officer" }, { "docid": "23260562", "title": "", "text": "to the officers’ safety so as to validate the search of his person and the vehicle. When reviewing the district court’s decision regarding a motion to suppress, we review its factual findings for clear error and its legal conclusions de novo. United States v. Blair, 524 F.3d 740, 747 (6th Cir.2008). The reasonableness of a search and seizure under the Fourth Amendment is a question of law. Id. The specific determination of whether reasonable suspicion of criminal activity exists to justify a traffic stop is a mixed question of law and fact which we review de novo. United States v. Torres-Ramos, 536 F.3d 542, 550 (6th Cir.2008). In reviewing the propriety of a district court’s denial of a motion to suppress, we consider the evidence in the light most favorable to the government. United States v. Coffee, 434 F.3d 887, 892 (6th Cir.2006). The protections of the Fourth Amendment “extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.” United States v. Luqman, 522 F.3d 613, 616 (6th Cir.2008) (internal citation and quotation marks omitted). However, pursuant to Terry, a warrantless encounter may be countenanced under the Fourth Amendment if an officer has reasonable suspicion that criminal activity may be afoot. In such circumstances, the officer may conduct a brief traffic stop for investigative purposes and make reasonable inquiries to confirm or dispel his suspicions. United States v. Butler, 223 F.3d 368, 374 (6th Cir.2000). Reasonable suspicion “ ‘requires more than a mere hunch, but is satisfied by a likelihood of criminal activity less than probable cause, and falls considerably short of satis fying a preponderance of the evidence standard. If an officer possesses a particularized and objective basis for suspecting the particular person of criminal activity based on specific and articulable facts, he may conduct a Terry stop.’ ” Dorsey v. Barber, 517 F.3d 389, 395 (6th Cir.2008) (quoting Smoak v. Hall, 460 F.3d 768, 778-79 (6th Cir.2006)). The lawfulness of an investigatory stop is judged by the totality of the circumstances to “determine whether the individual factors, taken as a whole, give rise" }, { "docid": "19926805", "title": "", "text": "of the stop was reasonable, that the officers had probable cause to arrest Cohen when they did, that the search of the passenger compartment of Cohen’s car was a lawful search incident to arrest, and that the discovery of the ammunition box in the passenger compartment gave Officer Koenig probable cause to search the trunk for a firearm. Cohen filed objections to the magistrate judge’s recommendation, arguing that the stop of Cohen’s car was unlawful and that the stop exceeded the lawful scope of a Terry stop well before the officers had probable cause to arrest Cohen. Although accepting the magistrate judge’s findings of fact, the district court concluded that the stop of Cohen’s car was not supported by reasonable suspicion and granted Cohen’s motion to suppress. The government timely filed this interlocutory appeal pursuant to 18 U.S.C. § 3731. II. ANALYSIS The sole issue presented in this appeal is whether the stop of Cohen’s car was supported by reasonable suspicion. Because the officers lacked reasonable suspicion justifying the stop of the car, we conclude that the district court properly granted Cohen’s motion to suppress. A. Standard of Review We review the district court’s findings of fact for clear error, but review de novo the district court’s legal conclusion as to the existence of reasonable suspicion. United States v. Caruthers, 458 F.3d 459, 464 (6th Cir.), cert. denied, — U.S. -, 127 S.Ct. 752, 166 L.Ed.2d 582 (2006). B. Reasonable Suspicion “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). To satisfy the requirements of the Fourth Amendment, a police officer may make an investigative stop of a vehicle only if the officer has “a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20" }, { "docid": "18148467", "title": "", "text": "was using had always been capable of placing 911 calls even when otherwise inoperable, and his turning away from the-officer to lean his left side on the pay phone could have been wholly innocent. Wells lacked reasonable suspicion to support the frisk Bailey argues, and the district court should not only have suppressed evidence of the gun, but also the crack and post arrest statements which were the fruits of the unlawful search. The government responds that Wells had reasonable suspicion based on the time of night, his awareness of frequent crimes in the neighborhood, poor lighting in the area of the pay phone, similarity in Bailey’s appearance and the description of the carjackers, the officer’s reasonable belief that Bailey was pretending to speak into an inoperable phone and was lying when he claimed to be using it, and Bailey’s apparent attempt to conceal the left side of his body when a uniformed officer approached. When reviewing a district court’s denial of a motion to suppress, we examine findings of fact for clear error, “giving ‘due weight’ to the inferences of the district court and law enforcement officials.” United States v. Replogle, 301 F.3d 937, 938 (8th Cir.2002). We review the district court’s application of law to the facts de novo. United States v. Williams, 359 F.3d 1019, 1020 (8th Cir.2004). “We must affirm an order denying a motion to suppress unless the decision is unsupported by substantial evidence, is based on an erroneous view of the applicable law, or in light of the entire record, we are left with a firm and definite conviction that a mistake has been made.” United States v. Rodriguez-Hernandez, 353 F.3d 632, 635 (8th Cir.2003). “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons... that fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Such investigatory stops, permitting only a limited search of outer clothing aimed at discovering weapons, are not subject to the probable cause requirement of the Fourth Amendment." }, { "docid": "5387285", "title": "", "text": "Jackson falsely testified at the suppression hearing. Jackson was sentenced to serve 138 months imprisonment. This appeal followed. ANALYSIS A. Motion to Suppress Evidence Jackson first argues that the district court erred when it denied his motion to suppress the firearm and crack cocaine recovered from his person on November 3, 2000. We review a district court’s findings of fact in a suppression hearing for clear error and its conclusions of law de novo. United States v. Meyer, 157 F.3d 1067, 1079 (7th Cir.1998). A factual finding is clearly erroneous when, although there is evidence to support it, the reviewing court is “left with the definite and firm conviction that a mistake has been made.” United States v. Gravens, 129 F.3d 974, 978 (7th Cir.1997). Given the fact-specific nature of motions to suppress, “reviewing courts give special deference to the trial court that heard the testimony and had the best opportunity to observe the witnesses at the suppression hearing.” United States v. French, 291 F.3d 945, 951 (7th Cir.2002). Jackson argues that the officers’ search of his person and seizure of the drugs and the firearm on November 3, 2000, violated his Fourth Amendment rights. The Fourth Amendment protects against “unreasonable searches and seizures,” and generally police officers must have probable cause before making an arrest or conducting a search. This amendment does not preclude any encounter between the police and citizens. United States v. Swift, 220 F.3d 502, 506 (7th Cir.2000). Under the principles established in Terry v. Ohio and its progeny, even without probable cause, police may conduct an investigatory stop, limited in scope and executed through the least restrictive means reasonable. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To make an investigatory stop, an officer needs only reasonable suspicion supported by articulable facts that criminal activity is afoot. Terry, 392 U.S. at 30; Swift, 220 F.3d at 506. Reasonable suspicion is “some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d" }, { "docid": "23613575", "title": "", "text": "Ultimately, the court sentenced Ms. Bradford to 132 months of incarceration, within the range of 120-135 months authorized by the United States Sentencing Guidelines Manual. II. DISCUSSION Ms. Bradford contends Trooper Peech lacked both reasonable suspicion to detain her and probable cause to search the car and trunk. She also claims an obstruction of justice enhancement imposed by the district court because she absconded from a Minneapolis hotel room while under arrest constituted a Blakely/Booker violation. Finally, she alleges error under Blakely/Booker because the court sentenced her based on five kilograms of cocaine even though she pled guilty to possessing only 4.97 kilograms. The court’s determination was based on evidence that she made nine prior paid trips from California to Minnesota; the court thought it “highly unlikely that such trips would not have involved more than 30 grams of drugs.” Sent. Tr. at 43. We will address each contention in turn. A. The Search and Seizure The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. Const, amend. IV. In reviewing the denial of a motion to suppress, we accept the factual findings of the district court unless they are clearly erroneous. United States v. Wood, 106 F.3d 942, 945 (10th Cir.1997). The ultimate determination of reasonableness under the Fourth Amendment, however, is a question of law which we review de novo. Id. (citations omitted). We view the evidence in the light most favorable to the district court’s determination. Id. (citations omitted). 1. Validity of the Seizure A traffic stop is a “seizure” within the meaning of the Fourth Amendment, “even though the purpose of the stop is limited and the resulting detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). We have held that a routine traffic stop is more analogous to an investigative detention than a custodial arrest. United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir.1998). “We therefore analyze such stops under the principles developed for investigative detentions set forth in Terry v." }, { "docid": "244199", "title": "", "text": "by the U.S. Bureau of Prisons. On appeal, Vickers challenges both his conviction and sentence. II. DISCUSSION A Motion to Suppress Vickers’s first argument is that the district court erred in denying his motion to suppress. In evaluating a refusal to suppress evidence, we review questions of law de novo and factual findings for clear error. United States v. Mata, 517 F.3d 279, 284 (5th Cir.2008). In addition, where, as here, the police acted without a warrant, the burden is on the Government to prove that the search was valid. United States v. Waldrop, 404 F.3d 365, 368 (5th Cir.2005). Vickers argues that the initial police action — pulling up in marked police vehicles and immediately instructing Vickers to place his hands on the police car — constituted an unconstitutional seizure under the Fourth Amendment because the officers had neither a warrant nor probable cause. The Government, on the other hand, characterizes the officers’ actions as a permissible “stop and frisk” because the officers had reasonable suspicion that Vickers was involved in the reported burglary based on the information provided in the 911 call. The Fourth Amendment provides these relevant protections: The Fourth Amendment prohibits unreasonable searches and seizures by the Government, and its protections extend to brief investigatory stops by persons or vehicles that fall short of traditional arrest. Because the balance between the public interest and the individual’s right to personal security tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity may be afoot. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal quotes and citations omitted). The legality of a “stop and frisk” requires this analysis: were the officer’s initial actions justified when they occurred, and was there a reasonable relation between subsequent actions and the circumstances that supported the stop? United States v. Brigham, 382 F.3d 500, 506 (5th Cir.2004) (en banc). (a) The initial stop The initial stop in a situation such as this is" }, { "docid": "19940413", "title": "", "text": "district court found that the stop was valid, that Soares’s Fourth Amendment rights were not violated, and that the officers’ actions were objectively reasonable. On November 27, 2006, Soares entered a conditional guilty plea to the indictment, which the district court accepted on November 27, 2006. On March 1, 2007, Soares was sentenced to thirty months’ imprisonment, followed by twenty-four months of supervised release. Soares appeals the motion to suppress pursuant to the conditional plea, but on appeal only challenges the pat-frisk. II. Discussion A. Standard of review This court reviews a district court’s determination of reasonable suspicion and probable cause on a motion to suppress de novo. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Capelton, 350 F.3d 231, 240 (1st Cir.2003). The district court’s findings of fact are reviewed for clear error. Capelton, 350 F.3d at 240. We give “due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Ornelas, 517 U.S. at 699, 116 S.Ct. 1657. We will uphold a denial of a motion to suppress “if any reasonable view of the evidence supports it.” Brown, 510 F.3d at 64 (internal quotation marks and citations omitted); see also United States v. Kornegay, 410 F.3d 89, 93 (1st Cir.2005). B. Analysis The Fourth Amendment protects against “unreasonable searches and sei zures.” U.S. Const, amend. IV. “[I]ts protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citing Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Yet “we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.” Terry, 392 U.S. at 24, 88 S.Ct. 1868. A pat-frisk of a passenger in a car that is stopped for a traffic violation is one of those situations. On appeal, Soares acknowledges that the police had probable" }, { "docid": "13493964", "title": "", "text": "timely notice of appeal, which he did on June 6, 2012. II. Mr. Madrid contends the district court erred in denying his motion to suppress, asserting the evidence against him resulted from an investigatory stop that lacked reasonable suspicion in violation of the Fourth Amendment. In reviewing the denial of a motion to suppress, “[w]e view the evidence in the light most favorable to the government and review the district court’s factual findings for clear error. We review the district court’s ultimate determinations of reasonableness under the Fourth Amendment de novo.” United States v. Tucker, 305 F.3d 1193, 1199 (10th Cir.2002)(internal citations and quotation marks omitted). 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 is well established that “[tjemporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].” Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court established a two-pronged test to determine the reasonableness of investigatory detentions. For an investigatory detention to be reasonable it must be “justified at its inception” and the officer’s actions must be “reasonably related, in scope to the circumstances which justified the interference in the first place.” Id. at 20, 88 S.Ct. 1868. The only issue in this appeal is whether the. seizure of Mr. Madrid was justified at its inception. Under Terry and its progeny, “the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citing Terry, 392 U.S. at 30, 88 S.Ct.. 1868). “An investigatory detention is justified" }, { "docid": "17106049", "title": "", "text": "of the foregoing reasons, we reject Mr. Jones’s argument that the Missouri officers’ seizure of him in Kansas effected a Fourth Amendment violation simply because they were acting outside of their jurisdiction and without authority under Kansas law. B “The Fourth Amendment protects the public from ‘unreasonable searches and seizures,’ U.S. Const, amend. IV, including unreasonable ‘investigatory stop[s]’ or detentions.” United States v. McGehee, 672 F.3d 860, 866 (10th Cir.2012) (alteration in original) (quoting United States v. Simpson, 609 F.3d 1140, 1146 (10th Cir.2010)). The Supreme Court has identified three types of police-citizen encounters: consensual encounters, investigative stops, and arrests. See Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir.2000). First, “[c]onsensual encounters are not seizures within the meaning of the Fourth Amendment, and need not be supported by suspicion of criminal wrongdoing.” Id. Second, “[investigative Terry stops, are, however, ‘seizures’ within the meaning of the Fourth Amendment; accordingly, a law enforcement officer, based on the totality of the circumstances, ‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” United States v. Villagrana-Flores, 467 F.3d 1269, 1273 (10th Cir.2006) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)); see United States v. Guardado, 699 F.3d 1220, 1222 (10th Cir.2012) (“In the absence of probable cause, the constitutionality of a search or seizure hinges on the objective reasonableness of an officer’s suspicion.”). Finally, “actual arrests, which are characterized by a highly intrusive or lengthy search or detention, require that a reasonable officer would have probable cause to believe the arrestee has committed a crime.” Villagrana-Flores, 467 F.3d at 1273 (citations omitted) (internal quotation marks omitted). It is important to recognize that “[t]hese categories are not static and may escalate from one to another,” United States v. White, 584 F.3d 935, 945 (10th Cir.2009) (quoting Cortez v. McCauley, 478 F.3d 1108, 1115 n. 5 (10th Cir.2007) (en banc)) (internal quotation marks omitted), and “[a] reviewing court must analyze each stage of the [police-citizen] encounter, ensuring that the requisite level of suspicion or cause is present at each" }, { "docid": "13745059", "title": "", "text": "followed by a three-year term of supervised release that includes eleven months of home detention. He timely appeals the district court’s denial of his motion to suppress. II. STANDARD OF REVIEW This court reviews de novo a district court’s determination of the reasonableness of a search and seizure under the Fourth Amendment. United States v. Abdenbi, 361 F.3d 1282, 1287 (10th Cir.2004). We look at the totality of the circumstances in reviewing the denial of the motion to suppress. United States v. Gay, 240 F.3d 1222, 1225 (10th Cir.2001). Furthermore, “we accept the factual findings of the district court unless.they are clearly erroneous, and view the evidence in the light most favorable to the district court’s determination.” United States v. Williams, 271 F.3d 1262, 1266 (10th Cir.2001) (internal citation omitted). “Reviewing courts must also defer to the ‘ability of a trained law enforcement officer to distinguish between innocent and suspicious actions.’ ” United States v. Santos, 403 F.3d 1120, 1124 (10th Cir.2005) (quoting United States v. McRae, 81 F.3d 1528, 1534 (10th Cir.1996)). III. DISCUSSION According to Mr. Dennison, the district court committed two separate errors when it denied his motion to suppress the two machine guns found in his truck. First, Mr. Dennison argues that the district court erred in finding that Officer Contos had reasonable suspicion to justify a Terry detention when he approached Mr. Dennison’s truck the second time after a brief initial encounter. Second, Mr. Dennison contends that the district court erred when it concluded that the warrantless search of Mr. Dennison’s truck was justified as a search incident to Mr. Allen’s arrest. A. Challenge to the second encounter Mr. Dennison maintains that Officer Contos’ second encounter with Mr. Dennison and Mr. Allen was an investigative detention not supported by reasonable suspicion. A lawful investigative detention of limited scope and duration does not require probable cause as long as the police officer has reasonable suspicion that the person seized is engaged in criminal activity. Terry, 392 U.S. at 30-31, 88 S.Ct. 1868. An officer making a Terry stop “must be able to articulate something more than" }, { "docid": "10325811", "title": "", "text": "by reasonable suspicion or, alternately, was beyond the scope of any such suspicion. The district court denied this motion and found the stop to be supported by reasonable suspicion and reasonable in scope. Rodriguez proceeded to trial and was convicted by a jury of both counts charged. He now appeals. il A Rodriguez argues that the district court erred in denying his suppression motion because all evidence obtained against him resulted from a traffic stop that lacked reasonable suspicion at its outset, in violation of the Fourth Amendment. In reviewing a denial of a motion to suppress, we view the evidence in the light most favorable to the government, accepting the district court’s factual findings unless clearly erroneous. United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir.2004); United States v. Bustillos-Munoz, 235 F.3d 505, 511 (10th Cir.2000). We review the ultimate Fourth Amendment determination de novo. Katoa, 379 F.3d at 1205; Bustillos-Munoz, 235 F.3d at 511. 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 is well established that an automobile stop constitutes a seizure for purposes of the Fourth Amendment, Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir.1998), and that a routine traffic stop is more analogous to an investigative detention than to a custodial arrest, Hunnicutt, 135 F.3d at 1348. Although probable cause is not necessary to support an investigative detention, it is sufficient. United States v. Callarman, 273 F.3d 1284, 1287 (10th Cir.2001). Rodriguez also challenges the scope of his traffic stop, claiming that it became an arrest when he was handcuffed and placed in Deputy Bencomo’s vehicle. As a matter of law, Rodriguez is correct that “[i]f a police-citizen encounter exceeds the limits of a Terry stop, the detention becomes an arrest that must be supported by probable cause.” United States v. Neff, 300" }, { "docid": "19877151", "title": "", "text": "argues that the district court erred in denying his motion to suppress evidence obtained as a result of his allegedly illegal arrest. We review the district court’s denial of the suppression motion for clear error. United States v. Saadeh, 61 F.3d 510, 516 (7th Cir.1995). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court looking at the evidence is left with the definite and firm conviction that a mistake has been made. Id. The resolution of a motion to suppress is necessarily fact-specific, so we give special deference to the district court that heard the testimony and observed the witnesses at the suppression hearing. Unit ed States v. James, 40 F.3d 850, 874 (7th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 948, 130 L.Ed.2d 891 (1995). Early’s argument focuses on the characterization of his interaction with various law enforcement personnel on March 16, 1992. This characterization is crucial, because it determines what requirements the Fourth Amendment imposes on law enforcement agents. United States v. McCarthur, 6 F.3d 1270, 1275 (7th Cir.1993). For an arrest, the police must have probable cause to believe that a person has committed or is committing a crime. For an investigatory or “Terry\" stop, the officer need have only specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime. The third category of interactions is the consensual encounter where no degree of suspicion is required. United States v. Nobles, 69 F.3d 172, 179-80 (7th Cir.1995) (citations omitted). Early argues that his initial encounter with the agents was an arrest without probable-cause, or in the alternative, a Terry stop without reasonable suspicion. He then argues that if the encounter were a Terry stop, it evolved into an arrest earlier than found by the court. The government argues that the initial encounter was a Terry stop that only turned into an arrest after a drug sniffing dog discovered cocaine in Early’s car. We have no difficulty concluding that the agents had at least reasonable suspicion initially justifying a" }, { "docid": "8393444", "title": "", "text": "the denial of their motions to suppress evidence. When considering a district court’s denial of a defendant’s motion to suppress evidence, we review its factual findings for clear error and its. legal conclusions de novo. See United States v. Hill, 195 F.3d 258, 264 (6th Cir.1999); United States v. Harris, 192 F.3d 580, 584 (6th Cir.1999). We review the evidence “in the light most likely to support the district court’s decision.” United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir.1999). Defendants argue that the investigative stop of Heath constituted an illegal seizure, thus his Fourth Amendment rights were violated. The defendants also contest the entry and search of Horton’s apartment. In analyzing the defendants’ Fourth Amendment claims, we have divided the events resulting in the defendants’ arrests into three distinct episodes: 1) the initial stop of Heath pursuant to the officers alleged reasonable suspicion of criminal activity; 2) the detention of Heath while the officers attempted to allay their suspicions of criminal activity; and 3) the entry and subsequent search of Horton’s apartment. We review each of these episodes in turn. a. The Initial Stop When the paths of police and citizens cross, the resulting encounter will not always constitute a seizure as contemplated by the Fourth Amendment. A seizure only occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Since Terry, courts have recognized that when “a law enforcement officer lacks probable cause,’ but possesses a reasonable and articulable suspicion that a person has been involved in criminal activity, he may detain the suspect briefly to investigate the suspicious circumstances.” United States v. Hurst, 228 F.3d 751, 756-57 (2000) (quoting United States v. Bentley, 29 F.3d 1073, 1075 (6th Cir.1994)). These seizures have become commonly known as Terry stops. However, we reiterate that Terry v. Ohio did not address the reasonableness of an investigative detention; rather, its holding addressed the reasonableness of a protective “frisk,” that is, a" }, { "docid": "22914254", "title": "", "text": "be held responsible for the 1857 gram amount. The court then overruled Mr. Hishaw’s objections to the drug quantity determinations. II DISCUSSION A. Motion to Suppress Mr. Hishaw first challenges the district court’s denial of his motion to suppress. He maintains that the Oklahoma City police officers lacked the necessary justification to make a traffic stop and also lacked a reasonable suspicion that he was engaging in the illegal distribution of drugs. We engage in de novo review of the district court’s conclusion that the stop of the pickup and the pat-down search of Mr. Hishaw were reasonable under the Fourth Amendment. See United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir.1996). We view the record in the light most favorable to the government and accept the district court’s factual findings unless they are clearly erroneous. See United States v. Gordon, 173 F.3d 761, 765 (10th Cir.1999). The Supreme Court has identified three general types of encounters between citizens and the police: (1) consensual encounters; (2) investigative detentions; and (3) arrests. See United States v. Davis, 94 F.3d 1465, 1468 (10th Cir.1996) (discussing types of encounters and citing Supreme Court cases). Although consensual encounters do not implicate the Fourth Amendment, there is an extensive body of case law establishing limitations on police officer’s discretion to effect investigative detentions and arrests. See id., 94 F.3d at 1468 (discussing requirements for detentions and arrests). Investigation detentions must be supported by a reasonable suspicion of criminal activity while arrests, “the most intrusive of Fourth Amendment seizures,” must be supported by probable cause. Id. Here, Mr. Hishaw and the government agree that Sergeant Alvarado’s stop of the pickup in which Mr. Hishaw was riding constituted an investigative detention for which reasonable suspicion was required. In order to determine whether the detention was reasonable, we consider “whether the officer’s action was justified at its inception” and “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “[I]n justifying the particular intrusion the" }, { "docid": "21675638", "title": "", "text": "crime of carrying a concealed deadly weapon. The district court conducted a suppression hearing and thereafter granted Martin’s motion to suppress, based on an analysis of the car stop and the search incident to Wagoner’s arrest. We conclude that the district court erred in finding that the officers lacked reasonable suspicion to justify the stop of Martin’s car and in finding that the officers lacked probable cause to arrest Wagoner. II. ANALYSIS A. Standard of Review In reviewing a district court’s determination on suppression questions, “a district court’s factual findings are accepted unless they are clearly erroneous.... ” United States v. Shamaeizadeh, 80 F.3d 1131, 1135 (6th Cir.1996) (citations omitted). The district court’s “determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.” Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). B. The Car Stop “The Fourth Amendment prohibits unreasonable searches and seizures.” United States v. Obasa, 15 F.3d 603, 606 (6th Cir.1994). However, a brief investigative stop, or Terry stop, by an officer who is able to point to “ ‘specific and articulable facts’ ” justifying his or her reasonable suspicion that the suspect has been or is about to be involved in criminal activity is not an unreasonable seizure. United States v. Sokolow, 490 U.S. 1, 12, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). While “the Fourth Amendment requires that the decision to stop the individual be based on something ‘more substantial than inarticulate hunches[,]’ ... ‘the totality of the circumstances — the whole picture — must be taken into account’” in determining the validity of a challenged stop. United States v. Roberts, 986 F.2d 1026, 1029 (6th Cir.) (quoting Terry, 392 U.S. at 22, 88 S.Ct. 1868). The scope of law enforcement activities in an investigative stop depends upon the circumstances that originally justified the stop, See United States v. Obasa, 15 F.3d 603, 607 (6th Cir.1994). “Thus, the officer may ask the detainee a moderate number of questions to determine" }, { "docid": "14579972", "title": "", "text": "and observed drag marks coming from the back of a residence and leading through the trees or bushes to the storage facility. The officers subsequently obtained an additional warrant to search the residence and discovered large black duffel bags, similar to one found in the trunk of Mr. Cantu’s car, containing marijuana. At the suppression hearing, Mr. Cantu argued that the officers lacked reasonable suspicion to justify an investigative stop of Mr. Cantu’s vehicle and that the delay in obtaining and executing a search warrant exceeded the acceptable parameters of an investigative stop. Mr. Cantu further argued that the warrants were invalid for lack of probable cause. Rejecting Mr. Cantu’s investigative stop argument, the district court found that the officers had probable cause to detain Mr. Cantu and that the warrants were properly issued on a showing of probable cause. Mr. Cantu then pleaded guilty to possession of 100 kilograms or more of marijuana with intent to distribute, reserving his right to appeal the denial of the motion to suppress evidence. Discussion Mr. Cantu argues that the warrant for the search of his vehicle was not based on probable cause and that his detention was illegal. On appeal from the denial of a motion to suppress evidence, we review the district court’s factual findings for clear error, viewing the evidence in the light most favorable to the government. United States v. Jardine, 364 F.3d 1200, 1204 (10th Cir.2004), vacated on other grounds — U.S.-, 125 S.Ct. 1024, 160 L.Ed.2d 1008 (2005). The district court’s determination of reasonableness under the Fourth Amendment is reviewed de novo. Id. A. The Search Warrants Because we find the issue determinative, we begin by examining whether the search warrant for Mr. Cantu’s vehicle was supported by probable cause. In the context of searches, we have previously noted that probable cause exists where attending circumstances “would lead a prudent person to believe there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Basham, 268 F.3d 1199, 1203 (10th Cir.2001). In determining whether a warrant" }, { "docid": "23383516", "title": "", "text": "February 12, 2007, Johnson filed his notice of appeal. The appeals were subsequently consolidated as they involve the same general issues of law and fact. II. DISCUSSION On appeal, Defendants challenge the district court’s denial of their motions to suppress the evidence obtained following the police officers’ initial stop of Johnson. Specifically, Defendants argue that, because the officers lacked either reasonable suspicion or probable cause for this stop, it was unlawful under the Fourth Amendment, and thus any evidence obtained as a result of the stop and the subsequent search of the Taurus must be suppressed. Additionally, Pearce claims that the district court abused its sentencing discretion by imposing his 235-month sentence without addressing the sentencing factors set forth in 18 U.S.C. § 3553(a). We find both of these arguments to lack merit and accordingly affirm Defendants’ convictions and sentences. A. Denial of Motion to Suppress 1. Standard of Review On appeal of a district court’s ruling on a motion to suppress, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Moon, 513 F.3d 527, 536 (6th Cir.2008). Whether a search was reasonable under the Fourth Amendment is a question of law which is reviewed de novo. United States v. Blair, 524 F.3d 740, 747 (6th Cir.2008); see Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (holding that “the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo ”). When a district court has denied the motion to suppress, we must “consider the evidence in the light most favorable to the government.” United States v. Carter, 378 F.3d 584, 587 (6th Cir.2004) (en banc). 2. Analysis The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. “A warrantless search or seizure is ‘per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ ” United States" }, { "docid": "17672762", "title": "", "text": "the ammunition. The parties agree that the decision to suppress turns on the question of whether the officers had a right to stop Torres’s vehicle pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “In reviewing a suppression order, we exercise plenary review over the District Court’s legal conclusions, and we review the underlying factual findings for clear error.” United States v. Laville, 480 F.3d 187, 190-91 (3d Cir.2007) (citation omitted). We review de novo the District Court’s legal conclusion that the officers lacked sufficient reasonable articulable suspicion to effectuate a Terry stop. See Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir.2003). III. The Fourth Amendment prohibits “unreasonable searches and seizures.... ” U.S. Const, amend. IV. “Generally, for a seizure to be reasonable under the Fourth Amendment, it must be effectuated with a warrant based on probable cause.” United States v. Robertson, 305 F.3d 164, 167 (3d Cir.2002) (citation omitted). Under the exception to the warrant requirement established in Terry, however, “an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articula-ble suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citation omitted). “Any evidence obtained pursuant to an investigatory stop (also known as a ‘Terry stop’ or a ‘stop and frisk’) that does not meet this exception must be suppressed as ‘fruit of the poisonous tree.’ ” United States v. Brown, 448 F.3d 239, 244 (3d Cir.2006) (citations omitted). The initial step of a Fourth Amendment suppression analysis requires us to determine the timing of the seizure. “[U]nder Terry, in evaluating whether [the officer’s] interaction with [the defendant] prior to his arrest amounted to an unreasonable seizure, we must first determine at what moment [the defendant] was seized....” Johnson, 332 F.3d at 205. In the case at bar, the District Court found — and the parties do not dispute — that Torres was seized when the officers stopped his car. Having pinpointed the time of the Fourth Amendment seizure, we next ask" } ]

[ { "docid": "21536152", "title": "", "text": "that, as said in Miller v. Bridgeport Brass Co., the only mistake claimed is “that the claim was not as broad as it might have been.” We note also that there was no showing that the narrowness of the claims arose from mistake in frarping' them (American Automotoneer Co. v. Porter, 232 F. 456 [6 C. C. A.]), or that either the patentee or his solicitor “without intending to do so, drafted or accepted claims not commensurate with the invention” (Van Kannel Revolving Door Co. v. Winton Hotel Co., 276 F. 234, 238 [6 C. C. A.]). No fixed rule can be laid down as to what constitutes an unreasonable delay. It has been said that, where the reissue is for the purpose of enlarging claims, the only mistake suggested being that they are not broad enough, the application- should be made -within “a reasonably short period after the original patent was granted.” What is a reasonably short period or a reasonable time depends to some extent, at least, upon the curative purposes of the application. We do not understand from the authorities nor from the discussions in Chapman v. Wintroath, 252 U. S. 126, 40 S. Ct. 234, 64 L. Ed. 491, and Webster Electric Co. v. Splitdorf Electric Co., 264 U. S. 463, 44 S. Ct. 342, 68 L. Ed. 792, that an application for a reissue with broadened claims is in time if filed at any time within two years from the date of the original patent in the absence of a specific showing of the intervention of private . rights. It is true that by analogy to the law of public use a longer delay requires that excuse therefor should be made manifest by special circumstances. Topliff v. Topliff, supra. This putting of the burden on the patentee to show that the delay was not unreasonable is not to be taken, we think, as meaning that there can be no unreasonable delay or laches within that period. No decision of the Supreme Court to which we have been referred so adjudicates. In the eases in which" } ]

[ { "docid": "10184743", "title": "", "text": "a reissued patent, application for the reissue being made some eighteen months after the patent originally issued. After discussing the authorities at some length, the court stated: No flxecl rule can be laid down as to wbat constitutes an unreasonable delay. It lias been said that, where the reissue is for the purpose of enlarging claims, the only mistake suggested being that they are not broad enough, the application should be made within “a reasonably short period after the original patent was granted.” What is a reasonably short period or a reasonable time depends to some extent, at least, upon the curative purposes of the- application. We do not understand from the authorities nor from the discussions in Chapman v. Wintroath, 252 U. S. 126, 40 S. Ct. 234, 64 L. Ed. 491, and Webster Electric Co. v. Splitdorf Electric Co., 264 U. S. 463, 44 S. Ct. 342, 68 L. Ed. 792, that an application for a reissue with broadened claims is in time if filed at any time within two years from the date of the original patent in the absence of a specific showing of the intervention of private rights. It is true that by analogy to the law of public use a longer delay requires that excuse therefor should be made manifest by special circumstances. Topliff v. Topliff, supra. This putting of the burden on the patentee to show that the delay was not unreasonable is not to be taken, we think, as meaning that there can be no unreasonable delay or laches within that period. No decision of the Supreme Court to which we have been referred so adjudicates. In the eases in which validity has been denied, the question has not been free from intervening private rights, and necessarily so, because it is only when some private right is involved that the reissue is questioned in the courts. It has been stated too often, however, to admit of doubt that the patentee is bound to discover the error within a reasonable time and! apply for reissue or lose his right. These statements are made" }, { "docid": "19039241", "title": "", "text": "A. (Patents) 1122, 102 F. (2d) 889, 41 USPQ 282. In re Seabury, 27 C. C. P. A. (Patents) 777, 108 F. (2d) 232, 44 USPQ 118, affirmed the proposition that even where a reissue application is filed within two years of the issuance of a patent, the patentee has no absolute right to a reissue presenting broader claims where he is wanting in diligence and promptness in filing the reissue application. In re Croskey et al., 35 C. C. P. A. (Patents) 864, 165 F. (2d) 797, 76 USPQ 389, points out that the Act of Congress approved August 5, 1939, 53 Stat. 1212, amends sections 4886, 4887,4920, and 4929 of the Revised Statutes, changing the statutory bar of public use from a two year period to one year, and that inasmuch as the two year rule applying to reissues was drawn by analogy to the time interval of the public use bar, applications for the reissue of patents granted on applications filed subsequent to the effective date of the cited act, August 5,1940, must be brought within one year of the issuance of the patent sought to be reissued unless there is proof of special circumstances excusing the delay. Here two years and eleven months elapsed after the issuance of the Hayes patent until the inventor learned of the insufficiency of its claims, and three years, one month, and twenty-eight days elapsed from the issuance of the patent until his reissue application was filed. The inventor advances as “special circumstances” excusing his delay, the several advices of his first patent attorney, in response to his inquiries, that his patent claims gave him sufficient coverage. The Supreme Court said in Wollensak v. Reiher, 115 U. S. 96, 99: It follows from tliis, that if, at the date of the issue of the original patent, the patentee had been conscious of the nature and extent of his invention, an inspection of the patent, when issued, and an examination of its terms, made with that reasonable degree of care which is habitual to and expected of men, in the management of" }, { "docid": "22875825", "title": "", "text": "laches which in equity disables the party, who seeks to revive a right which he has allowed to lie unclaimed, from enforcing it to the detriment of those who have, in consequence, been led to act as though it were abandoned. This general doctrine of equity was applied with great distinctness to the correction of alleged-mistakes in patents, by reissues, in the case of Miller v. Brass Company, 104 U. S. 350. It was there declared, that where the mistake suggested was merely that the claim was not as broad as it might have been, it was apparent upon the first inspection of the patent, and, if any correction was desired, it- should have been applied for immediately; that the granting of a reissue for such a purpose, after an unreasonable delay, is clearly an abuse of the power to grant reissues, and may justly be declared illegal and void; that, in reference to reissues made for the purpose of enlarging the scope of the patent, the rule of laches should be strictly applied, and no one should be relieved who has.slept upon his rights, and has thus led the public to rely on the implied disclaimer involved in the terms of the original.patent; and that when this is a matter apparent on the face of the instrument, upon a mere comparison of the original patent with the reissue, it is competent for the courts to decide whether the delay was unreasonable and whether the reissue was, therefore, contrary to law and void. This doctrine has been reiterated in many cases since, and at the .present term has been reconsidered and emphatically repeated as the settled law, in the case of Mahn v. Harwood, 112 U. S. 354, where it is said, by Mr. Justice Bradley, delivering the opinion of the court: “We repeat then, if a patentee has not claimed as much as he is entitled to claim, he is bound to discover the defect in a reasonable time, or he loses ail right to a reissue; and if the Commissioner of Patents, after the lapse of such reasonable" }, { "docid": "19039245", "title": "", "text": "the Court upheld the reissue patent. In Wollensak v. Sargent, 151 U. S. 221, 228-9, the inventor there, upon discovering the mistake in his patent 148,538, which was issued in 1874, wrote to his solicitors who, in 1878, advised him not to apply for a reissue of that patent, but for the reissue of another patent, 136,801. After the inventor obtained that reissue patent, he filed an infringement suit to restrain an infringement of that reissue patent. That suit was not decided until 1882. Meanwhile, in 1880, the inventor prepared an application for the reissue of Patent No. 148,538. His attorneys advised him that inasmuch as he had a patent broad enough to cover the invention, he should take no action on the reissue application until the infringement suit was completed. The Supreme Court, in considering the inventor’s excuse for delay in excess of the two year rule, cited Ives v. Sargent, supra, and said, “In the case at hand the excuse put forward is that the patentee followed the advice of his solicitor, and, therefore, did not apply within due time. Manifestly this will not do.” In re Ams, 29 App. D. C. 91, involved a case where the patentee discovered on the issuance of his patent that it was too narrow, but took his attorneys’ advice that the claim was as broad as could be obtained, and did nothing for more than five years when he filed a reissue application, seeking relief because he believed his then attorneys were mistaken as to the law. The Court of Appeals of the District of Columbia, in deciding the case, cited Wollensak v. Sargent, supra, and held that, “If the patentee did not think the attorneys who prosecuted his original application thoroughly understood his invention, and for that reason failed to obtain as broad a claim as might have been obtained, he should have consulted other counsel without delay.” The court also based its decision on the ground that broadened reissues “should be discouraged, and should be countenanced only in exceptional cases.” The inventor in the case of In re Lees," }, { "docid": "10184731", "title": "", "text": "lack of promptness in applying for the reissue. Reissue of the patent there under consideration was applied for fifteen years after the patent issued. The court held that the patentee could have discovered that his claims were not sufficiently broad by a reading of the patent at the time it was issued, and that he should have applied for the reissue “immediately.” In discussing the.matter the court said: * * * But it must be remembered that the claim of a specific device or combination, and an omission to claim other devices or combinations apparent on the face of the patent, are, in law, a dedication to the public of that which is not claimed. It is a declaration that that which is not claimed is either not the patentee’s invention, or, if his, he dedicates it to the public. This legal effect of the patent cannot be revoked unless the patentee surrenders it and proves that the specification was framed by real inadvertence, accident, or mistake, without any fraudulent or deceptive intention on his part; and this should he done with all due diligence and speed. Any unnecessary laches or delay in a matter thus apparent on the record affects the right to alter or reissue the patent for such cause. If two years’ public enjoyment of an invention with the consent and allowance of the inventor is evidence of abandonment, and a bar to an application for a patent, a public disclaimer in the patent itself should be construed equally favorable to the public. Nothing but a clear mistake, or inadvertence, and a speedy application for its correction, is admissible when it is sought merely to enlarge the claim. [Italics ours.] Again, in the same opinion it was said: Now whilst, as before stated, we do not deny that a claim may be enlarged in a reissued patent, we are of opinion that this can only be done when an actual mistake has occurred; not from a mere error of judgment (for that may be rectified by appeal), but a real dona fide mistake, inadvertently committed; such as" }, { "docid": "19039240", "title": "", "text": "Court in Wollensak v. Reiher, 115 U. S. 96, 101; Ives v. Sargent, 119 U. S. 652, 662; and Wollensak v. Sargent, 151 U. S. 221. The Court restated the rule in Sontag Chain Stores Co. Ltd. v. National Nut Co., 310 U. S. 281, 293, as, “a reissue with enlarged claims, not applied for within the two years after the original, is void in the absence of extraordinary exculpating circumstances.” Our predecessor in jurisdiction of appeals from the Patent Office followed the rule of denying a reissue for broadened claims after a lapse of two years from the issue of the patent without proof of special circumstances to excuse the delay. In re Starkey, 21 App. D. C. 519, 525; In re Schneider, 49 App. D. C. 204; 262 Fed. 718. That doctrine was adopted and affirmed by this court in In re Kaser, 20 C. C. P. A. (Patents) 1035, 64 F. (2d) 687, 17 U. S. Pat. Q. 339, and followed in the case of In re Bostwick, 26 C. C. P. A. (Patents) 1122, 102 F. (2d) 889, 41 USPQ 282. In re Seabury, 27 C. C. P. A. (Patents) 777, 108 F. (2d) 232, 44 USPQ 118, affirmed the proposition that even where a reissue application is filed within two years of the issuance of a patent, the patentee has no absolute right to a reissue presenting broader claims where he is wanting in diligence and promptness in filing the reissue application. In re Croskey et al., 35 C. C. P. A. (Patents) 864, 165 F. (2d) 797, 76 USPQ 389, points out that the Act of Congress approved August 5, 1939, 53 Stat. 1212, amends sections 4886, 4887,4920, and 4929 of the Revised Statutes, changing the statutory bar of public use from a two year period to one year, and that inasmuch as the two year rule applying to reissues was drawn by analogy to the time interval of the public use bar, applications for the reissue of patents granted on applications filed subsequent to the effective date of the cited act, August 5,1940," }, { "docid": "19039239", "title": "", "text": "not claimed in a patent; that nothing but a “speedy application for its correction, is admissible when it is sought merely to enlarge the claim”; and, that where a reissue is sought for the purpose of enlarging the scope of a patent, the rule of laches should be strictly applied. In Mahn v. Harwood, 112 U. S. 354, the Court held that a patent may not lawfully be reissued “for the mere purpose of enlarging the claim, unless there has been a clear mistake inadvertently committed in the wording of the claim” and the reissue application is filed “within a reasonably short period after the original patent was granted.” Because of the rights of the public, and the opportunity for fraud where considerable lapses of time intervened, tire court held that justice and public policy required holding patentees “strictly to the rule of reasonable diligence” in seeking broadened reissues, and that any delay longer than two years “should be made manifest by the special circumstances of the case.” That doctrine was affirmed again by the Court in Wollensak v. Reiher, 115 U. S. 96, 101; Ives v. Sargent, 119 U. S. 652, 662; and Wollensak v. Sargent, 151 U. S. 221. The Court restated the rule in Sontag Chain Stores Co. Ltd. v. National Nut Co., 310 U. S. 281, 293, as, “a reissue with enlarged claims, not applied for within the two years after the original, is void in the absence of extraordinary exculpating circumstances.” Our predecessor in jurisdiction of appeals from the Patent Office followed the rule of denying a reissue for broadened claims after a lapse of two years from the issue of the patent without proof of special circumstances to excuse the delay. In re Starkey, 21 App. D. C. 519, 525; In re Schneider, 49 App. D. C. 204; 262 Fed. 718. That doctrine was adopted and affirmed by this court in In re Kaser, 20 C. C. P. A. (Patents) 1035, 64 F. (2d) 687, 17 U. S. Pat. Q. 339, and followed in the case of In re Bostwick, 26 C. C. P." }, { "docid": "19039244", "title": "", "text": "and in view of the fact that valuable inventions are often placed in the hands of inexperienced persons to prepare such specifications and claims, it is no matter of surprise that the latter frequently fail to describe with requisite certainty the exact invention of the patentee, and err either in claiming that which the patentee had not in fact invented, or in omitting some element which was a valuable or essential part of his actual invention. Under such circumstances, it would be manifestly unjust to deny him the benefit of a reissue to secure to him his actual invention, provided it is evident that there has been a mistake and he has been guilty of no want of reasonable diligence in discovering it, and no third persons have in the meantime acquired the right to manufacture or sell what he had failed to claim. [Italics supplied]. In that case, the second reissue was applied for within five months from the time the original patent was granted, and within thirty-seven days of the first reissue, and the Court upheld the reissue patent. In Wollensak v. Sargent, 151 U. S. 221, 228-9, the inventor there, upon discovering the mistake in his patent 148,538, which was issued in 1874, wrote to his solicitors who, in 1878, advised him not to apply for a reissue of that patent, but for the reissue of another patent, 136,801. After the inventor obtained that reissue patent, he filed an infringement suit to restrain an infringement of that reissue patent. That suit was not decided until 1882. Meanwhile, in 1880, the inventor prepared an application for the reissue of Patent No. 148,538. His attorneys advised him that inasmuch as he had a patent broad enough to cover the invention, he should take no action on the reissue application until the infringement suit was completed. The Supreme Court, in considering the inventor’s excuse for delay in excess of the two year rule, cited Ives v. Sargent, supra, and said, “In the case at hand the excuse put forward is that the patentee followed the advice of his solicitor, and," }, { "docid": "21536156", "title": "", "text": "new styled Symons clamp prior to the time he filed his application, his attention meanwhile having been called to the fact that that clamp was not put on the market until 1928. He admitted, however, that he had seen a Keffer clamp on a job in Chicago and that it might have been in the spring of 1926. The proofs show that Keffer clamps were in experimental use in Chicago at that time. Even if the patentee.did not see one of them, he saw some clamp in the spring of 1926 which suggested to him a possible deficiency iu the claims of his patent; and yet not for six monihs thereafter did lie file an application for a reissue. Presumably it was then filed because of the damp which he had seen arid which suggested the inquiry as to his own patent claims. Reasonable care, it seems to us, would have required him, upon noticing this clamp in Chicago, to proceed immediately to correct the error in his patent. It was said in Miller v. Bridgeport Brass Co., that “it will not do for the patentee to wait until other inventors have produced new forms of improvement, and thou, with the new light thus acquired, under pretence of inadvertence and mistake, apply for such an enlargement of his claim as to make it embrace these new forms.” In our opinion t here arc two reasons why the reissue patent cannot bo sustained. The first is the failure of the patentee to file an application therefor prior to the date of his discovery of the use of a similar device in Chicago. An inspection by the patentee of his patent at any time after it issued and prior to his noticing the Chicago damp would have disclosed the mistake which he claims was made, and, whether he did not inspect it and thus did not discover the mistake or did inspect it and failed to file his application, he was guilty of negligence effecting an unreasonable delay. The second is the failure to file an application for six months after he" }, { "docid": "22875824", "title": "", "text": "the original patent. This is to say, that if, as a matter of fact, the patentee was the first and original inventor of the parts and combinations covered by these claims, the language of the specification to the original patent would sufficiently embrace them. It follows from this, that if, at the date of the issue of the original patent, the patentee had been conscious of the nature, and extent of his invention, an inspection of the patent, when issued, and an examination of its terms, made with that reasonable degree of care which is habitual to and expected of men, in the management of their own interests, in the ordinary affairs of life, would have immediately informed him that .the patent had failed fully to cover the area of his invention. And this must be deemed to be notice to him of the fact, for the law imputes knowledge when opportunity and interest, combined with reasonable care, would necessarily impart it. Not to improve such'opportunity, under the stimulus of self-interest, with reasonable .diligence, constitutes laches which in equity disables the party, who seeks to revive a right which he has allowed to lie unclaimed, from enforcing it to the detriment of those who have, in consequence, been led to act as though it were abandoned. This general doctrine of equity was applied with great distinctness to the correction of alleged-mistakes in patents, by reissues, in the case of Miller v. Brass Company, 104 U. S. 350. It was there declared, that where the mistake suggested was merely that the claim was not as broad as it might have been, it was apparent upon the first inspection of the patent, and, if any correction was desired, it- should have been applied for immediately; that the granting of a reissue for such a purpose, after an unreasonable delay, is clearly an abuse of the power to grant reissues, and may justly be declared illegal and void; that, in reference to reissues made for the purpose of enlarging the scope of the patent, the rule of laches should be strictly applied, and" }, { "docid": "21536157", "title": "", "text": "Bridgeport Brass Co., that “it will not do for the patentee to wait until other inventors have produced new forms of improvement, and thou, with the new light thus acquired, under pretence of inadvertence and mistake, apply for such an enlargement of his claim as to make it embrace these new forms.” In our opinion t here arc two reasons why the reissue patent cannot bo sustained. The first is the failure of the patentee to file an application therefor prior to the date of his discovery of the use of a similar device in Chicago. An inspection by the patentee of his patent at any time after it issued and prior to his noticing the Chicago damp would have disclosed the mistake which he claims was made, and, whether he did not inspect it and thus did not discover the mistake or did inspect it and failed to file his application, he was guilty of negligence effecting an unreasonable delay. The second is the failure to file an application for six months after he had seen the clamp which suggested a possible defect in his claims. This was sufficient to bar a reissue if it was not already barred by failure to discover the error, if there was error, and correct it in the preceding twelve months. The decree is reversed, and the cause remanded, with directions to dismiss the bill." }, { "docid": "19039238", "title": "", "text": "with broadened claims.” The board also pointed out that the affidavits of record establish that the blueprints submitted to appellant’s first patent attorney were the same as those later submitted to the manufacturer. From these same designs considered in relation to the Hayes patent, appellant’s attorney and the manufacturer’s attorney reached opposite conclusions. The board held that the delay of the inventor in discovering the insufficiency of his patent claims was, therefore, due to an error in judgment — not a mistake in the facts — and that an error of judgment does not excuse an unreasonable delay in applying for a reissue patent, citing Topliff v. Topliff, 145 U. S. 156. Miller v. Brass Co., 104 U. S. 350, laid down in unmistakable terms the rule that an application for a reissue patent must be made with all due diligence and speed; that, by analogy to the statutory bar of public use, failure to file for a reissue within two years may be considered as an abandonment to the public of matter disclosed but not claimed in a patent; that nothing but a “speedy application for its correction, is admissible when it is sought merely to enlarge the claim”; and, that where a reissue is sought for the purpose of enlarging the scope of a patent, the rule of laches should be strictly applied. In Mahn v. Harwood, 112 U. S. 354, the Court held that a patent may not lawfully be reissued “for the mere purpose of enlarging the claim, unless there has been a clear mistake inadvertently committed in the wording of the claim” and the reissue application is filed “within a reasonably short period after the original patent was granted.” Because of the rights of the public, and the opportunity for fraud where considerable lapses of time intervened, tire court held that justice and public policy required holding patentees “strictly to the rule of reasonable diligence” in seeking broadened reissues, and that any delay longer than two years “should be made manifest by the special circumstances of the case.” That doctrine was affirmed again by the" }, { "docid": "22744304", "title": "", "text": "“He has rested supinely until the use of the fish-plate joint has become universal, and then, after a lapse of fifteen years, has attempted by a reissue to extend his patent to cover it. . We think it is perfectly clear that the original patent could not be fairly construed' to embrace the device used by the appellee, which appellants insist is covered by their reissue. If the reissued patent covers it, it is broader than the original, and is, therefore, void.” In the case of Mahn v. Harwood, 112 U. S. 354, 358, a patent reissued nearly four years after the date of the original patent was held to be invalid as to the new claims, upon the ground of unreasonable delay in applying for it, the only object of- the reissue being to enlarge the claims. Nothing was changed, but to multiply the claims and make them, broader and this was done, not for the benefit of .the original patentee, but for that of his assignees. “ It was not intended then,” said Mr. Justice Bradley, referring to Miller v. Brass Co., “ and is not now, to question the conclusiveness, in suits for infringements of patents, of the decisions of the Commissioner on questions of fact '-necessary to be decided before, issuing such patents, except as the statute gives specific defences in that regard.” He repeated substantially what had been said in Miller v. Brass Co., that “a patent for an invention cannot lawfully be reissued for the mere purpose of enlarging the claim,-unless there has been a clear mistake inadvertently committed in thé wording of the claim, and the application for a reissue is made within a reasonably short period after the original patent was granted. The granting of such reissues after thefiapse of long periods of time is an abuse of power, and is founded on a total misconception of the law.” It was held that while lapses of time might be of small consequence where the original claim- was too broad, and the patentee sought to restrict it, there were substantial reasons why the" }, { "docid": "19039243", "title": "", "text": "their own interests, in the ordinary affairs of life, would have immediately informed him that the patent had failed fully to cover the area of his invention. And this must be deemed to be notice to him of the fact, for the law imputes knowledge when opportunity and interest, combined with reasonable care, would necessarily impart it. In Ives v. Sargent, 119 U. S. 652, an application for reissue was made nearly three years after the patent issued, and the applicant sought to excuse the delay by establishing the negligence of the patent solicitor who prepared the original application. The inventor, however, had failed to read the patent after its issuance, and the Court held the reissue void as the inventor himself was negligent in discovering the negligence and error of his solicitor in time. In Topliff v. Topliff, 145 U. S. 156, 171, the Supreme Court said: The specification and claims of a patent, particularly if the invention he at all complicated, constitute one of the most difficult legal instruments to draw with accuracy, and in view of the fact that valuable inventions are often placed in the hands of inexperienced persons to prepare such specifications and claims, it is no matter of surprise that the latter frequently fail to describe with requisite certainty the exact invention of the patentee, and err either in claiming that which the patentee had not in fact invented, or in omitting some element which was a valuable or essential part of his actual invention. Under such circumstances, it would be manifestly unjust to deny him the benefit of a reissue to secure to him his actual invention, provided it is evident that there has been a mistake and he has been guilty of no want of reasonable diligence in discovering it, and no third persons have in the meantime acquired the right to manufacture or sell what he had failed to claim. [Italics supplied]. In that case, the second reissue was applied for within five months from the time the original patent was granted, and within thirty-seven days of the first reissue, and" }, { "docid": "21536151", "title": "", "text": "no such inadvertence, accident, or mistake, as claimed in a reissue of it, could have occurred, an expansion of the claim cannot be allowed or sustained.” In Mahn v. Harwood, 112 U. S. 354, 359, 360, 5 S. Ct. 174, 177, 6 S. Ct. 451, 28 L. Ed. 665, it was said: “A patent for an invention cannot lawfully be reissued for the mere purpose of enlarging the claim, unless there has been a clear mistake inadvertently committed in.the wording of the claim.” See, also, Coon v. Wilson, 113 U. S. 268, 277, 5 S. Ct. 537, 28 L. Ed. 963. It is of course true that a court will not review the decision of the Commissioner as to error arising by inadvertence or mistake unless the matter is manifest on the record. Topliff v. Topliff, supra. We think it may be noted, though, as bearing upon delay in applying for the reissue here in suit, that the error, if there was error, could have been discovered as soon as the patent was examined, and that, as said in Miller v. Bridgeport Brass Co., the only mistake claimed is “that the claim was not as broad as it might have been.” We note also that there was no showing that the narrowness of the claims arose from mistake in frarping' them (American Automotoneer Co. v. Porter, 232 F. 456 [6 C. C. A.]), or that either the patentee or his solicitor “without intending to do so, drafted or accepted claims not commensurate with the invention” (Van Kannel Revolving Door Co. v. Winton Hotel Co., 276 F. 234, 238 [6 C. C. A.]). No fixed rule can be laid down as to what constitutes an unreasonable delay. It has been said that, where the reissue is for the purpose of enlarging claims, the only mistake suggested being that they are not broad enough, the application- should be made -within “a reasonably short period after the original patent was granted.” What is a reasonably short period or a reasonable time depends to some extent, at least, upon the curative purposes of the" }, { "docid": "8920463", "title": "", "text": "as to be instantly discernible on opening the letters-patent, and the right to have it corrected was abandoned and lost by unreasonable delay. The only mistake suggested is, that the claim was not as broad as it might have been. This mistake, if it was a mistake, was apparent upon the first inspection of the patent, and, if any correction was desired, it should have been applied for immediately.” The original patent in our case issued April 2, 1929. At that time it should have been apparent to the patentee and his solicitors that the claims were so broad as to be invalid because they described the problem rather than the means invented by the patentee for solving it. Again, when the plaintiff acquired the original patent by purchase on May 29, 1934, the functional nature of the claims was obvious to all who took the trouble to read them and the invalidity of the patent should, therefore, have been clear to anyone with even a rudimentary knowledge of patent law. Plaintiff was advised by its counsel of the invalidity of the patent on February 11, 1937, but it was not until six months later on August 18th of that year, that it filed its application for reissue. The reissue patent in suit was granted December 13, 1938. We conclude that the significant date is not that upon which the plaintiff was informed by counsel of the patent’s invalidity but rather April 2, 1929, when the patent with its obviously invalid claims issued. The question therefore-is whether a delay of more than eight years in making application for reissue was reasonable. Because of varying circumstances there can of course be no fixed rule as to the time within which an application for reissue must be made. What is a reasonable time under the circumstances is to be determined by the court. Topliff v. Topliff, 145 U.S. 156, 171, 12 S.Ct. 825, 36 L.Ed. 658. We have no doubt that a delay of more than eight years under the circumstances of this case was unreasonable. With but few exceptions the cases" }, { "docid": "22110762", "title": "", "text": "have been infringed were expansions of the original claims as embraced within the invention set forth in the original patent. This Court (pp. 99-100) said: “ It follows from this, that if, at the date of the issue of the original patent, the patentee had been conscious of the nature and extent of his invention, an inspection of the patent, when issued, and an examination of its terms, made with that reasonable degree of care which is habitual to and expected of men, in the management of their own interests, in the ordinary affairs of life, would have immediately informed him that the patent had failed fully to cover the area of his invention. And this must be deemed to be notice to him of the fact, for the law imputes knowledge when opportunity and interest, combined with reasonable care, would necessarily impart it. “ Not to improve such opportunity, under the stimulus of self-interest, with reasonable diligence, constitutes laches which in equity disables the party, who seeks to revive a right which he has allowed to lie unclaimed, from enforcing it to the detriment of those who have, in consequence, been led to act as though it were abandoned. “ This general doctrine of equity was applied with great distinctness to the correction of alleged mistakes in patents, by reissues, in the case of Miller v. Brass Company, 104 U. S. 350. It was there declared, that where the mistake suggested was merely that the claim was not as broad as it might have been, it was apparent upon the first inspection of the patent, and, if any correction was desired, it should have been applied for immediately; that the granting of a reissue for such a purpose, after an unreasonable delay, is clearly an abuse of the power to grant reissues, and may justly be declared illegal and void; that, in reference to reissues made for the purpose of enlarging the scope of the patent, the rule of laches should be strictly applied, and no one should be relieved who has slept upon his rights, and has thus" }, { "docid": "22543395", "title": "", "text": "the issue of the patent adds tó the strength of this right, and increases the barrier against subsequent expansion of the claim by reissue under a pretence of inadvertence and mistake. If any such inadvertence or mistake has really occurred, it is generally easily discernible by an inspection of the patent itself; and any unreasonable delay in applying to have it corrected by a surrender and reissue is a just bar to such correction. If the specification is complicated and the claim is ambiguous or involved, the ■ patentee may be entitled to greater indulgence ; and Of this the court can rightfúlly judge in each case. No precise limit of time can be fixed and laid down for all cases; ‘ The courts will always exercise a proper liberality in favor of the patentee. -But in any case, by such delay as the court may deem unnecessary and • unreasonable, the- right to a reissue will be regarded as having been abandoned and lost,, and the Commissioner will be held to have exceeded his authority in granting it. Whenever it is manifest from the patent itself, compared with the original patent and cognate documents of record, or from the facts developed in the case, that the Commissioner must have disregarded the rules of law by which his authority to grant a reissue in such cases is governed, the patent will be considered as void to the extent of such illegality. It is then a-question of law, not a question of fact. As before stated, the case is entirely different from that of a reissue by reason of a defective specification or description, or on account of the claim being too broad. In these cases, the public interest is promoted by the change; whilst a reissue for the purpose of making a claim more broad and comprehensive is injurious to the public, since it takes from the public the use of that which it previously enjoyed, and which the original patent acknowledged its right to enjoy. We repeat then, if a patentee has not claiihed as much as he is" }, { "docid": "22110764", "title": "", "text": "led the public to rely on the implied disclaimer involved in the terms of the original patent; and that when this is a matter apparent on the face of the instrument, upon a mere comparison of the original patent with the reissue, it is competent for the courts to decide whether the delay was unreasonable and whether the reissue was, therefore, contrary to law and void. “ This doctrine has been reiterated in many cases since, and at the present term has been reconsidered and emphatically repeated as the settled law, in the case of Mahn v. Harwood, 112 U. S. 354, where it is said, by Mr. Justice Bradley, delivering the opinion of the court: ‘ We repeat, then, if a patentee has not claimed as much as he is entitled to claim, he is bound to discover the defect in a reasonable time, or he loses all right to a reissue; and if the Commissioner of Patents, after the lapse of such reasonable time, undertakes to grant a reissue for the purpose of correcting the supposed mistake, he exceeds his power, and acts under a mistaken view of the law; and the court, seeing this, has a right, and it is its duty, to declare the reissue pro tanto void, in any suit founded upon it.’ It was also there said, that, while no invariable rule can be laid down as to what is reasonable time within which the patentee should seek for the correction of a claim which he considers too narrow, a delay of two years, by analogy to the law of public use before an application for a patent, should be construed equally favorable to the public, and that excuse for any longer delay than that should be made manifest by the special circumstances of the case.” In Ives v. Sargent, 119 U. S. 652, 661, the duty of the patentee to examine his letters patent within a reasonable time to ascertain whether the latter fully covered his invention was reiterated. And where this was neglected for a period of three years, when, finding the" }, { "docid": "22110763", "title": "", "text": "allowed to lie unclaimed, from enforcing it to the detriment of those who have, in consequence, been led to act as though it were abandoned. “ This general doctrine of equity was applied with great distinctness to the correction of alleged mistakes in patents, by reissues, in the case of Miller v. Brass Company, 104 U. S. 350. It was there declared, that where the mistake suggested was merely that the claim was not as broad as it might have been, it was apparent upon the first inspection of the patent, and, if any correction was desired, it should have been applied for immediately; that the granting of a reissue for such a purpose, after an unreasonable delay, is clearly an abuse of the power to grant reissues, and may justly be declared illegal and void; that, in reference to reissues made for the purpose of enlarging the scope of the patent, the rule of laches should be strictly applied, and no one should be relieved who has slept upon his rights, and has thus led the public to rely on the implied disclaimer involved in the terms of the original patent; and that when this is a matter apparent on the face of the instrument, upon a mere comparison of the original patent with the reissue, it is competent for the courts to decide whether the delay was unreasonable and whether the reissue was, therefore, contrary to law and void. “ This doctrine has been reiterated in many cases since, and at the present term has been reconsidered and emphatically repeated as the settled law, in the case of Mahn v. Harwood, 112 U. S. 354, where it is said, by Mr. Justice Bradley, delivering the opinion of the court: ‘ We repeat, then, if a patentee has not claimed as much as he is entitled to claim, he is bound to discover the defect in a reasonable time, or he loses all right to a reissue; and if the Commissioner of Patents, after the lapse of such reasonable time, undertakes to grant a reissue for the purpose of" } ]

[ { "docid": "2320978", "title": "", "text": "himself. As it was here. Every count in a properly drafted indictment is a different crime. A judge in our system does. not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them. Prosecutorial discretion resides in the executive, not in the judicial, branch, and that discretion, though subject of course to judicial review to protect constitutional rights, is not reviewable for a simple abuse of discretion. Wayte v. United States, 470 U.S. 598, 607-08, 105 S.Ct. 1524, 1530-31, 84 L.Ed.2d 547 (1985); United States v. Schwartz, 787 F.2d 257, 266-67 (7th Cir.1986); United States v. Podolsky, 798 F.2d 177, 181 (7th Cir.1986). This principle is most often invoked when the issue is whom to prosecute, as in Wayte v. United States, supra; Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962), and United States Labor Party v. Oremus, 619 F.2d 683, 690-91 (7th Cir.1980), but it has equal force when the issue is which crimes of a given criminal to prosecute. Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978); United States v. Goodwin, 457 U.S. 368, 382, 102 S.Ct. 2485, 2493, 73 L.Ed.2d 74 (1982); United States v. Smith, 953 F.2d 1060, 1064 (7th Cir.1992). If Dr. Gian-nattasio committed fifteen Medicare frauds, a judge cannot tell the Justice Department to prosecute him for only five of the frauds, or to prosecute him for five now and the rest later, if necessary. Of course there are judicially enforceable checks on discretion to indict. But they are protections for defendants, not for judges. Of particular relevance here, a defendant can seek severance for trial of offenses charged in the indictment, if trying them together would prejudice his defense. Fed. R.Crim.P. 14. The same rule permits the government to ask for severance if it would be prejudiced by a joint trial. Neither party moved for severance. No rule authorizes the judge to sever offenses in an indictment because he believes that a trial of all the counts charged would clog his docket without yielding" } ]

[ { "docid": "1754695", "title": "", "text": "liability.” We agree with the Government that each of the mailings is a “discrete basis” of criminal liability and may clearly be considered a count for purposes of § 3731. What is slightly less certain is whether all of the mailings other than the single one that the District Court required the Government to elect have been “dismissed” within the meaning of § 3731. In Alberti and Sanabria, the order appealed from had ruled portions of a count legally invalid. By contrast, Judge Sifton’s ruling in this case implies that every one of the mailings is a valid basis for conviction because it permits the Government to elect to proceed on any one of them. Nevertheless, we conclude that the election the Government was obliged to make would have effectively dismissed all of the mailings other than the one the Government would have selected. Unlike an election for misjoinder of counts, which leaves the Government free to proceed upon the severed counts in a subsequent prosecution, the election here would not have permitted the Government to “sever” each of the other mailings and prosecute them subsequently as separate counts. Since each of the counts thus separated would constitute a separate offense, normally carrying penalties capable of being imposed consecutively, Albernaz v. United States,-U.S.-, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), a defendant could not be subjected to such liability in the absence of an indictment setting forth multiple counts. The Fifth Amendment assures the defendant that the grand jury will consider how many counts to include in an indictment. A prosecutor could not circumvent this protection by inviting a grand jury to include several offenses in one count and then, after being obliged to elect a single offense, prosecute the other offenses as separate counts. The Government seeks no such authority here. Its characterization of this case as “simply indistinguishable” from Alberti (Govt. Br. 17) implicitly recognizes that prosecution for all of the mailings, other than the one selected, has been as effectively barred by Judge Sifton (absent re-indictment) as was prosecution on the portions of the count “struck” by" }, { "docid": "12081969", "title": "", "text": "that it must “cease combining in an alleged single conspiracy, criminal acts loosely, if at all, connected,” United States v. Bertolotti, 529 F.2d 149, 151 (2d Cir. 1975), we should not treat the fact that it heeded such advice in this case with stone-faced indifference. Here, the trial court’s failure to charge the jury on single versus multiple conspiracies was not error and Salazar’s contrary contention is unpersuasive. This does not mean, of course, that the government may arbitrarily jointly try defendants alleged to have engaged in unrelated conspiracies, for the rules governing joinder and severance still apply. Ill Joinder and Severance Salazar, Shanks-Carrera, Vallejo, and Gomez object to the trial court’s denial of their motions for severance. It should be noted initially that all of the counts in the indictment concerning the non-RICO appellants were charged also in the RICO count as predicate racketeering acts against Salazar and Chavez-Tesina. Join-der of these defendants in the same indictment was therefore proper under Fed.R. Crim.P. 8(b), even though multiple conspiracies were charged and even though some defendants were not named in all the conspiracy counts, which also constituted RICO predicate offenses, or in the overarching RICO count. See United States v. Barton, 647 F.2d 224, 239-40 (2d Cir.), cert. denied, 454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981); United States v. Weisman, 624 F.2d 1118, 1129 (2d Cir.), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 91 (1980); United States v. Gallo, 668 F.Supp. 736, 748 (E.D.N.Y.1987), mandamus granted on other grounds, 834 F.2d 283 (2d Cir.1987); United States v. Castellano, 610 F.Supp. 1359, 1396-97 (S.D.N.Y.1985). The only question is whether denial of the Fed.R.Crim.P. 14 motions for severance from the joint trial was a clear abuse of the trial court’s discretion. Nersesian, 824 F.2d at 1303. A. Salazar The essence of Salazar’s argument for severance encompasses the issues of proper joinder under Rule 8(b) and of single versus multiple conspiracies. These arguments were rejected above and need not be discussed further. Salazar also contends that he was prejudiced by the admission of conspiracy evidence that related" }, { "docid": "18844165", "title": "", "text": "and Hogan to be members of the same conspiracy. C. Severance of the Tax Counts Hogan directs his next challenge to the charges of filing false tax returns listed in Counts 7, 8, and 9. He argues that the district court should have severed the tax charges from the RICO charges. Hogan contends that the government’s tax experts, using an indirect method of proof called the cash method, established that he owed approximately $20,000 in taxes for tax years 1981, 1982, and 1983. In comparison, he notes that the government established through direct evidence that he took at most $4,400 in bribes during those years. Because these totals do not correlate, he contends that the district court should have granted his motion to sever the tax counts from the RICO counts. Although Hogan does not indicate which rule of law he believes pertinent, the government assumes that Hogan is raising the issue of severance pursuant to Rule 14 of the Federal Rules of Criminal Procedure. We therefore consider the issue of severance under Rule 14 because Hogan does not contradict the government’s characterization. Cf. West Allis Memorial Hosp., Inc. v. Bowen, 852 F.2d 251, 257 (7th Cir.1988) (appellant has duty of presenting authority for its contentions). Pursuant to Rule 14 of the Federal Rules of Criminal Procedure, the district court may order separate trials on individual counts if it appears that a defendant is prejudiced by joinder of the offenses. We will reverse the district court’s decision to deny or grant a motion for severance under Rule 14 only for an abuse of discretion. United States v. Turk, 870 F.2d 1304, 1306 (7th Cir.1989). To establish an abuse of discretion, the defendant must show that he suffered actual prejudice. United States v. L’Allier, 838 F.2d 234, 241 (7th Cir.1988). In determining whether joinder caused the defendant actual prejudice, we determine whether evidence supporting one count could also have been admitted in a trial solely on the other count. See, e.g., id. at 241'. If the evidence would have been admissible on either count, the defendant cannot claim that he was" }, { "docid": "15361444", "title": "", "text": "“the district court’s order — -forcing a choice of counts without a formal dismissal of the other counts — is not significantly different from ordering a formal dismissal without prejudice.” Id. at 283. The Tenth Circuit continued that the district court’s attempt to limit the counts presented would violate the separation of powers: “Because the district court’s ruling forces the government to abandon, at least temporarily, the prosecution of separate crimes it has charged against defendants who are scheduled to be tried, we believe the ruling goes beyond those subject to the court’s discretionary control and impinges upon the separation of powers. Prosecutorial discretion is a function of the executive branch, not the judiciary.” Id. at 284. In Giannattasio the Seventh Circuit similarly held that a district court violated the separation of powers when it forced the government to select five of fifteen counts to present at trial. Judge Posner’s opinion explained: A judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them. Prosecutorial discretion resides in the executive, not in the judicial branch, and that discretion, though subject of course to judicial review to protect constitutional rights, is not reviewable for a simple abuse of discretion. This principle is most often involved when the issue is whom to prosecute ... but it has equal force when the issue is which crimes of a given criminal to prosecute. If Dr. Giannattasio committed fifteen Medicare frauds, a judge cannot tell the Justice Department to prosecute him for only five of the frauds, or to prosecute him for five now and the rest later, if necessary.... No rule authorizes the judge to sever offenses in an indictment because he believes that a trial of all the counts charged would clog his docket without yielding any offsetting benefit in the form of a greater likelihood of conviction or a more severe punishment. Giannattasio, 979 F.2d at 100 (citations omitted). Cf. United States v. Abdelhaq, 246 F.3d 990, 992 (7th Cir.2001) (“The judge felt that the government didn’t need the extra counts. He" }, { "docid": "18776970", "title": "", "text": "on the RICO counts does not militate against the joinder’s propriety under Rule 8(b). We have already recognized the general construction of the rule as permitting “joinder in cases where individual defendants are charged with some but not all counts of the indictment.” Welch, 624 F.2d at 1129. Although Jimenez was not charged with participating in the enterprise, his dealings with Provenzano allowed Provenzano to further the baleful influence of his criminal organization. The mail fraud was listed as a predicate act in counts one and two, and the jury found Provenzano guilty of a racketeering pattern that included this act. Jimenez may have been a customer only once instead of the two times required for prosecution under RICO, but this difference seems a mere technicality, insufficient to prevent joinder of Jimenez with the other appellants under Rule 8(b). See Welch, 656 F.2d at 1052-53, quoting Weisman, 624 F.2d at 1129. Jimenez, Manzella, and Canale argue that joinder was prejudicial under Fed. R.Crim.P. 14, which provides in part: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. Rulings under Rule 14 are reviewable only for abuse of discretion. See, e.g., United States v. Bright, 630 F.2d 804, 813 (5th Cir.1980). A showing of clear prejudice is therefore required before we may overrule a trial court’s decision whether to sever. See id. The record suggests no clear prejudice. As in most RICO cases, the evidence here is both massive and complex. It was not so complicated, however, as to prevent the jury from separating the evidence and properly applying it only to those against whom it was offered. The testimony of witnesses such as Toal did not unduly confuse the identities of the appellants, and complete, coherent cases were made out against each. The trial court, moreover, explicitly instructed the jury to consider each offense separately" }, { "docid": "5612844", "title": "", "text": "Page 6 seem to indicate that the Court views collateral estoppel as a bar to preclude use of the acquitted counts as RICO predicates in further prosecution, so we read that as to be a limit on our use of the evidence on the acquitted counts. THE COURT: I am not quite sure I understand — you are saying to me you want to prove up acquitted counts? THE PROSECUTOR: That is right. That was the position, your honor, we took very clearly in our response to the various defendants. THE COURT: I think I am against you on that. THE PROSECUTOR: Okay. We wanted to make sure we understood that. THE COURT: I think on acquitted counts they don't come in. THE PROSECUTOR: For any purpose? THE COURT: I can’t think of any. Id. at 8-9. . The district court also held that although the defendants had been acquitted of numerous counts, “there was sufficient evidence of both a pattern of racketeering and a conspiracy.\" O.R. (91-2604) 988 at 6-7. Therefore, tíre court held that the government is not precluded from retrying the RICO conspiracy charges. See United States v. Felix, — U.S.-, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992) (even if defendant has already been prosecuted for crime, double jeopardy prohibition against multiple prosecutions does not bar prosecution for conspiracy to commit that crime because conspiracy and underlying crime are not \"same offense”); United States v. Neapolitan, 791 F.2d 489, 501 (7th Cir.) (when indictment defines RICO conspiracy with reference to particular predicate acts, \"crimes ... that do not appear in the indictment cannot serve as predicate acts” but \"would be admissible as circumstantial evidence that Neapolitan was a member of a conspiracy\"), cert. denied, 479 U.S. 939, 940, 107 S.Ct. 421, 422, 93 L.Ed.2d 371, 372 (1986); see also United States v. Glecier, 923 F.2d 496, 500-01 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 54, 116 L.Ed.2d 31 (1991). Although the defendants argue that some of the acquittals bar retrial of RICO conspiracy counts, see supra at 276 n. 7, they did not raise this" }, { "docid": "8810087", "title": "", "text": "the court’s authority to manage the case to prevent cumulative, unnecessary and misleading evidence. In United States v. Zabawa, the district court limited the government’s case to twenty counts of a seventy-count indictment because “[i]t would be a waste of judicial resources if the Government were to parade into court thirty-five witnesses whose testimony would be largely redundant and would not impact the potential sentence to which defendants would be exposed.” Id. at 283. The government appealed, claiming the reduction in the counts “prevented] it from presenting the necessary evidence to convict all defendants.” Id. at 284. We recognized “a district court has reasonable discretion in appropriate cases to manage its docket,” but found “the district court’s ruling force[d] the government to abandon, at least temporarily, the prosecution of separate crimes it has charged against defendants who are scheduled to be tried.” Id. We stated, “[ujnless the district court rests its decision on the need to protect or preserve constitutional rights, it may not interfere with the prosecutorial function.” Id. We quoted with approval the Seventh Circuit’s reasoning in United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir.1992): A judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them. Prosecutorial discretion resides in the executive, not in the judicial, branch, and that discretion, though subject of course to judicial review to protect constitutional rights, is not reviewable for a simple abuse of discretion. This principle is most often invoked when the issue is whom to prosecute ... but it has equal force when the issue is which crimes of a given criminal to prosecute. If Dr. Giannattasio committed fifteen Medicare frauds, a judge cannot tell the Justice Department to prosecute him for only five of the frauds, or to prosecute him for five now and the rest later, if necessary. Of course there are judicially enforceable checks on discretion to indict. But they are protections for defendants, not for judges.... No rule authorizes the judge to sever offenses in an indictment because he believes that a trial of" }, { "docid": "8810088", "title": "", "text": "Seventh Circuit’s reasoning in United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir.1992): A judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them. Prosecutorial discretion resides in the executive, not in the judicial, branch, and that discretion, though subject of course to judicial review to protect constitutional rights, is not reviewable for a simple abuse of discretion. This principle is most often invoked when the issue is whom to prosecute ... but it has equal force when the issue is which crimes of a given criminal to prosecute. If Dr. Giannattasio committed fifteen Medicare frauds, a judge cannot tell the Justice Department to prosecute him for only five of the frauds, or to prosecute him for five now and the rest later, if necessary. Of course there are judicially enforceable checks on discretion to indict. But they are protections for defendants, not for judges.... No rule authorizes the judge to sever offenses in an indictment because he believes that a trial of all the counts charged would clog his docket without yielding any offsetting benefit in the form of a greater likelihood of conviction or a more severe punishment. Zabawa, 39 F.3d at 285. The Schneiders argue Zabawa may be distinguished because the court here did not actually dismiss Count 5. Rather, it merely limited the government to evidence sufficient to prove the charge. The government concedes the district court did not dismiss Count 5 outright but argues it could have charged each named individual in Count 5 as a separate count against the Schneiders. Thus, the inclusion of this charged conduct in one count does not change the substance of the charges or the effect of the district court’s ruling. Prior to the 2002 amendment to § 3731, we required the dismissal of an entire count before appellate jurisdiction attached, rejecting the reasoning of those courts who looked to the practical effect of the district court’s ruling to determine jurisdiction. See Louisiana Pacific Corp., 106 F.3d at 348 (rejecting “a test under which the government can" }, { "docid": "981311", "title": "", "text": "Cir. 1974). III. Musick does not claim that the government increased the severity of the charges against him in obtaining the. superseding indictment following his successful motion for a mistrial. Relying solely on the authority of United States v. D’Alo, 486 F.Supp. 954 (D.R.I. 1980), Musick argues that when the prosecution increased the likelihood he would be convicted by simplifying its case in the superseding indictment, the prosecution appeared to be acting vindictively in response to his mistrial motion. As Musick points out, D’Alo did extend Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and its progeny to a situation similar to Musick’s on the strength of the reasoning that reformulating charges to increase the chance of conviction amounted to penalizing defendant for the exercise of his procedural rights. Because we find this reasoning unpersuasive, we decline to follow D’Alo in extending Blackledge and its progeny as Musick urges us to do. Here, as in D’Alo we have a simple case of a prosecutor doing what every trial lawyer tries to do: improve his chances of winning on retrial by learning from his mistakes at the original trial. It is understandable why the prosecutor would abandon the RICO substantive and conspiracy counts with all their complications in favor of straightforward charges of the predicate drug offenses. After a long, fruitless trial, the complex RICO counts lost some of their seductive appeal. We simply fail to see how dropping the RICO counts in favor of the substantive drug counts gives rise to even a suggestion that the prosecution was retaliating against Musick for successfully moving for a mistrial. The only “penalty” resulting from Musick’s exercise of a procedural right is nothing more than the risk that all litigants run if a case is retried: your adversary may make adjustments in his case based on what he learned at the first trial. We emphasize that we are not dealing with a superseding indictment increasing the severity of the charges. Rather, Mu-sick’s maximum possible prison term under the new indictment is significantly less than under the original indictment." }, { "docid": "981312", "title": "", "text": "to do: improve his chances of winning on retrial by learning from his mistakes at the original trial. It is understandable why the prosecutor would abandon the RICO substantive and conspiracy counts with all their complications in favor of straightforward charges of the predicate drug offenses. After a long, fruitless trial, the complex RICO counts lost some of their seductive appeal. We simply fail to see how dropping the RICO counts in favor of the substantive drug counts gives rise to even a suggestion that the prosecution was retaliating against Musick for successfully moving for a mistrial. The only “penalty” resulting from Musick’s exercise of a procedural right is nothing more than the risk that all litigants run if a case is retried: your adversary may make adjustments in his case based on what he learned at the first trial. We emphasize that we are not dealing with a superseding indictment increasing the severity of the charges. Rather, Mu-sick’s maximum possible prison term under the new indictment is significantly less than under the original indictment. We therefore see no reason to suspect a retaliatory motive in what the prosecution did and find no appearance of vindictiveness. Accordingly, we decline to extend Blackledge to a case where the prosecutor reformulates charges to increase the chance of conviction. We accordingly AFFIRM with respect to Musick. With respect to Motley, we REVERSE the ruling of the district court and REMAND for further proceedings consistent with this opinion. . If the government increases the severity of the charges following a defendant’s exercise of a procedural right, the sequence of events gives rise to an appearance of vindictiveness, shifting the burden to the government to prove that the decision to re-indict with more severe charges did not result from any vindictive motive. “Instead, the prosecutor, to rebut the presumption, must show his decision to re-indict with more severe charges was ‘justified by independent reasons or intervening circumstances which dispel the appearance of vindictiveness.’ ” United States v. Burt, 619 F.2d 831, 836 (9th Cir. 1980), quoting United States v. Griffin, 617 F.2d at 1347. ." }, { "docid": "12576639", "title": "", "text": "well. The government cannot bootstrap multiple defendants with similar but unconnected offenses into a single indictment by combining Rules 8(a) and 8(b) and the existence of overlapping defendants. Schweihs, 971 F.2d at 1322. If the RICO count were unrelated to the extortion count, ie., not part of the “same series of acts or transactions,” joinder would indeed have been improper. But that is not the ease. The Hess bribery scheme charged in Count II was also the fourth predicate act of racketeering in Count I. Because the overlapping Hess scheme was the sole predicate act to have occurred within five years of the indictment, it was a necessary element of the RICO claim against Judge Stillo. Therefore, severance of the two counts would have required trying the Hess episode twice. Moreover, the other predicate RICO acts in which Joseph Stillo was not involved were earlier attempts by Judge Stillo to collect bribes from criminal defense lawyers and thus part of the same “series of acts or transactions” as the later Hess scheme. Joinder of both counts and defendants was thus proper under Rule 8(b). Joseph Stillo contends that even if joinder was proper the district court abused its discretion in failing to grant a severance. Federal Rule of Criminal Procedure 14 provides: If it appears that a defendant or the government is prejudiced by a joinder of ... defendants ... for trial together, the court may order an election of separate trials or counts, grant severance of defendants or provide whatever other relief justice requires. To establish an abuse of discretion by the trial court, Joseph Stillo must show that without a severance he was unable to obtain a fair trial, not merely that a separate trial would have offered him a better chance for acquittal. United States v. Boykins, 9 F.3d 1278 (7th Cir.1993). Joseph Stillo complains of “prejudicial spillover” from the evidence of pervasive corruption relating to the predicate RICO offenses in which he was not involved. In order to succeed on this claim, Joseph Stillo “must rebut the dual presumptions that a jury will (1) capably sort" }, { "docid": "7497823", "title": "", "text": "that “[t]he law remains unsettled and the error is therefore not plain.” Id. at 547-48, 128 S.Ct. 2020. We also noted that Congress had since amended the money-laundering statute in response to the Supreme Court’s decision in Santos, adopting the broader “gross receipts” definition of the term “proceeds.” Id. at 549, 128 S.Ct. 2020. Our decision in Aslan controls here. Hosseini and Obaei were convicted of concealment money laundering — and also the transaction-avoidance form of the offense — but they failed to preserve the “proceeds” issue in the district court. At the time of their trial, it was unclear whether proof of “proceeds” in a concealment or avoidance money-laundering prosecution required proof that the defendant laundered net profits of the underlying criminal activity. Accordingly, as in Aslan, the claimed error — if there was one— was not plain. B. Misjoinder/Severance Hosseini asked the district court for severance of the drug-conspiracy count, which was lodged against Obaei alone. The district court denied the request, holding that joinder was proper under Rule 8 of the Federal Rules of Criminal Procedure. We review claims of misjoinder de novo based on the allegations on the face of the indictment, not the proofs at trial. United States v. Williams, 553 F.3d 1073, 1078 (7th Cir.2009). Joinder rules are applied broadly in order to promote efficiency; joint trials are more convenient for witnesses, foster speedier trials, and allow a single jury to hear the “total story.” United States v. Stillo, 57 F.3d 553, 556-57 (7th Cir.1995). Rule 8(b) of the Federal Rules of Criminal Procedure governs joinder of multiple defendants in a single indictment: The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count. Fed.R.Crim.P. 8(b). If the offenses arise out of “the same series of acts or transactions,” joinder is appropriate. Even if misjoinder has" }, { "docid": "15361443", "title": "", "text": "98 (7th Cir.1992). These cases em body the fundamental principle that unelected federal judges are not vested under the Constitution with the responsibility to exercise prosecutorial discretion and “take Care that the Laws be faithfully executed.” Art. II, Sec. 3. A more democratically responsive branch must be left to make the difficult choices about whom to charge, which crimes to pursue, and how numerous and serious the charges will be. District courts of course retain the power to dismiss legally defective indictments, but they cannot engage in a freewheeling process of rewriting indictments and offering defendants lighter or different charges. In Zabawa after the district court required the government to proceed to trial on a limited portion of the indictment, the government objected and sought to appeal because it believed that reducing the counts prevented the government from “presenting the necessary evidence to convict all defendants.” Zabaiva, 39 F.3d at 284. Although the district court did not dismiss those counts that the government was not permitted to pursue at trial, the Tenth Circuit concluded that “the district court’s order — -forcing a choice of counts without a formal dismissal of the other counts — is not significantly different from ordering a formal dismissal without prejudice.” Id. at 283. The Tenth Circuit continued that the district court’s attempt to limit the counts presented would violate the separation of powers: “Because the district court’s ruling forces the government to abandon, at least temporarily, the prosecution of separate crimes it has charged against defendants who are scheduled to be tried, we believe the ruling goes beyond those subject to the court’s discretionary control and impinges upon the separation of powers. Prosecutorial discretion is a function of the executive branch, not the judiciary.” Id. at 284. In Giannattasio the Seventh Circuit similarly held that a district court violated the separation of powers when it forced the government to select five of fifteen counts to present at trial. Judge Posner’s opinion explained: A judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them. Prosecutorial" }, { "docid": "14433701", "title": "", "text": "the indictment.” United States v. Neary, 733 F.2d 210, 217 (2d Cir.1984). The Bell homicide evidence is similar in nature. Therefore, we reverse. For the above reasons, the judgments of conviction on all three counts are vacated and the case is remanded to the district court, for a new trial.. . In their separate appeals, Bradley and Powell contest numerous additional rulings from the district court. Because of our disposition of the case, we need not and do not address most of these contentions. . Bradley asserts on appeal that Sonia Cruz Powell’s testimony violated his rights under the Confrontation Clause of the Constitution. He moved for severance under Federal Rule of Criminal Procedure 14. In view of our reversal, we need not pass on Bradley's claim of misjoin-der. . One witness, Cedric Green, testified he observed a van at the scene that Bradley and Powell had used. However, while the jury was deliberating, Green admitted perjuring his testimony. He could not have witnessed the homicide because he was in prison at the time. Our resolution of the case makes it unnecessary for us to consider the defendants’ arguments regarding this perjury. . The prosecution makes much of the fact that at various times the defendants possessed cash that smelled musty, as if it had been buried. There was also evidence that Beasley had buried large amounts of cash for safekeeping. The evidence of buried cash, however, does not reveal a murder plot. . The prosecution made an offer of proof that it would show that the defendants offered to pay another individual, Gregory McDowell, to carry out the Bell homicide. However, prosecutors did not call McDowell as a witness, and thus never developed' this evidence. We cannot now evaluate the prosecution's suggestion that McDowell may have declined to testify because he received a threat. There is no record of the government attempting to compel his testimony. . Indeed, the prosecutor argued as much, telling jurors that the \"Alejo Bell-Eric Bell homicide is relevant because it shows that Edward Powell was willing to do the same thing with respect to" }, { "docid": "7237877", "title": "", "text": "properly indicted and tried for these acts. Each act of racketeering delineated in section 1961(1), as well as conspiracy to commit such crimes, are already criminal acts under federal or state statutes, or both. We need not distort a statute in order to properly prosecute criminals. RICO was not enacted as an offensive weapon against criminals, but as a shield to thwart their depredations against legitimate business enterprises. For the foregoing reasons, we hold that the RICO indictment in this case was invalid. We now consider the effect of this ruling on the defendants. Turkette and Vargas maintain that they were improperly joined in the indictment and, hence, improperly joined for trial because the crimes with which they were charged did not form a “series of acts or transactions” in accordance with the precepts of Fed.R.Crim.P. 8(b). It is claimed that the evidentiary spillover from one crime to another, and from defendant to defendant, was inherently prejudicial. Vargas also claims that the trial judge erred in refusing to sever his case from Turkette’s because Vargas’ participation in mail fraud was unrelated to Turkette’s participation in drugstore burglaries. Because most of the testimony at trial pertained to Turkette’s activities, Vargas argues that the evidence which was introduced to prove the series of narcotics violations was highly prejudicial to him. Vargas points to the dismissal, at the close of the government’s case, of the RICO conspiracy count against him as signifying improper joinder and erroneous refusal to sever. Guilt is both individual and personal. Kotteakos v. United States, 328 U.S. 750, 773, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946). Thus, a defendant charged with committing multiple crimes is entitled to a separate trial for each crime that is not “substantially part of the same transaction,” McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. 355 (1896); one accused with others, has “the right not to be tried en masse for the conglomeration of distinct and separate offenses committed by others[.]” Kotteakos, supra, 328 U.S. at 775, 66 S.Ct. at 1253. Nevertheless, joinder of offenses or parties has the" }, { "docid": "15335491", "title": "", "text": "presumed to give the defendant a free ride for separate crimes he may have committed, or to prevent a prosecutor from bringing new charges as a result of changed or altered circumstances which properly bear on prosecu-torial discretion. United States v. Griffin, 617 F.2d 1342, 1348 (9th Cir.1980). We will not apply a presumption of vindictiveness to a subsequent criminal case where the basis for that case is justified by the evidence and does not put the defendant twice in jeopardy. Such a presumption is tantamount to making an acquittal a waiver of criminal liability for conduct that arose from the operative facts of the first prosecution. It fashions a new constitutional rule that requires prosecutors to bring all possible charges in an indictment or forever hold their peace. But see United States v. Oliver, 787 F.2d 124, 126 (3d Cir.1986) (no prosecutorial vindictiveness where the prosecutor’s decision to prosecute is based on the usual determinative factors). We reject such a proposition for it undermines lawful exercise of discretion as well as plain practicality. Here the government explains that it chose not to indict for all possible crimes in the Accetturo trial because to do so would have made the trial unmanageable and would have possibly confused the jury. It decided to charge Esposito with only the RICO charges, which are often complicated and difficult to prove. The Accetturo indictment included sixty-five pages of charges against twenty defendants charging them with criminal conduct lasting years. Indeed the Accetturo trial lasted seventeen months, not counting jury selection, even though all available charges were not included in the indictment. In Esposito I we rejected Esposito’s attempt to interpose “a constitutional requirement that the prosecution must include in a compound offense indictment all of the possible charges on substantive offenses arising out of each of the predicate offenses.” 912 F.2d at 67. We recognized, “As a practical matter, this would make a RICO trial, which frequently is brought against multiple defendants and contains multiple counts, unwieldy.” Id. In a multi-count, multi-defendant trial, the proliferation of charges that would result from bringing all possible" }, { "docid": "8963891", "title": "", "text": "Seventh Circuit never reviewed this question), this case is not, and so in our view it was insufficient for the district court merely to recite the number of counts, RAs, and different criminal statutes involved and then announce a conclusion. As already noted, the district court stressed that there were thirty-eight predicate acts, but this overstates the number of criminal episodes involved, see note 6, above; in this case the criminal statutes other than RICO are not esoteric; and the district court’s exclusion of RAs did not significantly reduce the number on which jury instructions would be required — at most, it reduced the number by one. Further, there is no showing that the district court had exhausted more conventional means to cope with the case. Rule 14 gives the district judge wide authority to sever defendants, counts, or both, upon a showing of prejudice. Cf United States v. Bartelho, 129 F.3d 663, 678 (1st Cir.1997). In principle, the district court could require that DeCologero be tried alone and solely upon the two RICO counts and the RAs applicable to him, severing all other defendants and counts for a future trial or trials. Similarly, limits on witnesses and the time allowed to each side are permissible measures. Duquesne Light Co., 66 F.3d at 609-10; Sec’y of Labor v. DeSisto, 929 F.2d 789, 796 (1st Cir.1991). In this case the district judge did not make findings, or negate alternatives, that would justify the extreme remedy of excluding otherwise properly charged RAs from the initial trial. In so ruling, we intend no criticism whatever of the experienced and distinguished trial judge who was trying to bring more order into a complex trial. The limits of trial management authority are inherently uncertain, and existing circuit case law here and elsewhere is virtually a stranger to the precise problem in this case. For the reasons stated, the order rejecting the double jeopardy defense is affirmed, the trial management order is vacated insofar as it excluded from the indictment or evidence the four individual RAs in question in order to simplify proceedings, and the matter" }, { "docid": "8171210", "title": "", "text": "count, appellants’ joinder was never proper under the Rule. In these circumstances, the only sensible approach is to view appellants’ joinder as having been void ab initio, and to afford them the remedy to which all victims of misjoinder are entitled. We therefore reverse the judgments of conviction as to all of the appellants on all of the remaining counts and remand the cause for new and separate trials. At this point, we do not think it either desirable or possible to issue precise instructions as to how these offenses and defendants ought ultimately to be subdivided for purposes of retrial. That is properly a decision for the prosecutor in the sound exercise of his discretion, subject to scrutiny by the District Court under Rule 8. We would observe, however, that, in the event the prosecutor opts for multiple defendant retrials, prudence would counsel strongly against mixing the four categories of offenses we have identified in this opinion. In the interest of expediting the proceedings on remand, we also note that we have reviewed, and we reject, appellants’ claims that the District Court should have suppressed: (1) the fruits of judicially-authorized electronic surveillance of a telephone at appellant Holmes’ residence, because there was no probable cause to believe that Holmes herself was engaged in criminal activity ; and (2) the fruits of a search of an apartment' located at 3619 Clarion Avenue because the warrant was not supported by probable cause. Reversed and remanded for further proceedings consistent with this opinion. . As previously mentioned, the evidence showed that appellant Adams owned a jewelry store where some of the criminal activities involved in this case took place. The government does not argue that the jewelry store was the RICO “enterprise” referred to in the indictment, and the case was not tried on that theory in the District Court. . Brief for the United States at 23. . See text accompanying note 1 supra. . Hearings Before the Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 91st Cong., 1st Sess. on S. 30, S. 974, S." }, { "docid": "12457971", "title": "", "text": "court incorrectly admitted “similar act” evidence in support of the tax fraud charges. Although none of these claims warrant reversal, each will be discussed. Our principal reason for writing is to clarify the rules applicable to the joinder of multiple charges and multiple defendants in a single indictment, to which we turn first. A. Joinder of the Mail Fraud and Tax Fraud Charges Against Turoff and the Silvers Prior to trial, appellants moved to sever the tax fraud charges from the mail fraud charges arising from the Compumeter scheme. The district court denied the motion, noting that “[a]t a minimum, the proof of the two alleged schemes will overlap, because the government charges that the tax law violations stem from the defendants’ ill-gotten gains in the Compumeter scheme.” United States v. Turoff, 652 F.Supp. 707, 711 (E.D.N.Y.1987). After this denial of severance, the prosecutor called to Judge Glasser’s attention that defendants Alan Silver and Harriet Silver were charged with failing to report interest income derived from sources other than the Compumeter scheme charged in the mail fraud counts. The Silvers responded by renewing their severance motion. Concluding that joinder would be appropriate if the prosecution could prove that the Silvers’ tax violations were the products of an “overall corrupt relationship” among the defendants and Hyfin, Judge Glasser again denied the motion. See United States v. Turoff, 691 F.Supp. 607 (E.D.N.Y.1987) (Supplemental Memorandum and Order). Appellants now challenge their convictions upon the ground that joinder of the tax fraud charges with the mail fraud charges was improper under Fed.R.Crim.P. 8. 1. Rule 8 in General The principal question is whether an indictment against multiple defendants joining these different sets of charges— each of which involves an alleged conspiracy and alleged substantive crimes — is proper under Fed.R.Crim.P. 8. Unlike review of a motion made pursuant to Rule 14 (severance of counts as relief from prejudicial joinder of defendants or offenses) or Rule 13 (joinder at trial of separate indictments against multiple defendants) for abuse of discretion, the propriety of joinder under Rule 8 raises a question of law and is subject" }, { "docid": "8171209", "title": "", "text": "when compliance with the Rule must be assessed, i. e,, the beginning of the trial. Since joinder had been proper, the question was not one of misjoinder but rather whether the trial court had abused its discretion in denying the defendants’ motions for relief from prejudicial joinder under Rule 14. Finding no abuse, the Court affirmed the convictions on the three substantive counts. We think this case stands on an entirely different footing. Here, the counts alleged to justify appellants’ joinder — the RICO and RICO conspiracy counts — failed not on grounds of insufficient proof, but rather because they rested upon an erroneous construction of the statute under which they were brought. Had the indictment been tested against the correct construction of 18 U.S.C. §§ 1962(c) and (d), the RICO counts would have been dismissed, and, as we have already, explained, joinder of the remaining counts could not have been sustained under Rule 8. Thus, unlike the situation in Schaffer, where joinder was fully justified at the relevant time by a legally sufficient conspiracy count, appellants’ joinder was never proper under the Rule. In these circumstances, the only sensible approach is to view appellants’ joinder as having been void ab initio, and to afford them the remedy to which all victims of misjoinder are entitled. We therefore reverse the judgments of conviction as to all of the appellants on all of the remaining counts and remand the cause for new and separate trials. At this point, we do not think it either desirable or possible to issue precise instructions as to how these offenses and defendants ought ultimately to be subdivided for purposes of retrial. That is properly a decision for the prosecutor in the sound exercise of his discretion, subject to scrutiny by the District Court under Rule 8. We would observe, however, that, in the event the prosecutor opts for multiple defendant retrials, prudence would counsel strongly against mixing the four categories of offenses we have identified in this opinion. In the interest of expediting the proceedings on remand, we also note that we have reviewed, and" } ]

[ { "docid": "14473155", "title": "", "text": "STEWART, Circuit Judge: The opinion filed in this case on January 26, 1996, 74 F.3d 620, is withdrawn and the following opinion is substituted: THE CASE On July 7, 1993, a grand jury returned a superseding indictment charging Joel Gonzalez (“Gonzalez”) and Jose Francisco Gomez (“Gomez”), along with ten co-defendants, with multiple counts of federal drug crimes. The superseding indictment charged Gonzalez in counts one through six with conspiracy to possess with the intent to .distribute marijuana, two counts of possession with the intent to distribute more than 1,000 kilograms of marijuana, and three money-laundering counts, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and 18 U.S.C. § 1956(a)(1)(A)®, respectively. The superseding indictment charged Gomez in those same counts except for counts two and six. On September 9, 1993, the district court ordered a severance and tried Gonzalez, Gomez, and a third man apart from the other defendants. The trial was held in January 1994. The jury found Gonzalez guilty of counts one, two, three, and six and Gomez of counts one and three. On May 2, 1994, the district court sentenced Gonzalez to four concurrent 235-month terms of incarceration, three concurrent five-year terms of supervised release, one concurrent three-year term of supervised release, a $200 special assessment, and a $10,000 fine. Prior to the sentencing hearing, Gonzalez filed an objection to the Pre-sentence Investigation Report (“PSR”) complaining that the imposition of the criminal sentence violated the double jeopardy and excessive fine clauses of the Constitution. The court sentenced Gomez on June 16, 1994, to 168 months of imprisonment followed by a supervised release term of five years and charged a $5,000 fine. After the district court entered judgments, both Gonzalez and Gomez timely appealed. DISCUSSION Standard of Review We review the district court’s denial of a motion to dismiss an indictment on double jeopardy grounds de novo and accept the underlying factual findings of the district court unless clearly erroneous. United States v. Botello, 991 F.2d 189, 192 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 886, 127 L.Ed.2d 80 (1994); United States v. Deshaw, 974 F.2d" } ]

[ { "docid": "3974728", "title": "", "text": "BARRETT, Circuit Judge. The United States appeals from an order of the district court, 555 F.Supp. 1273 (1983) granting the defendant-appellee Beachner Construction Co., Inc.’s (Beachner Co.) motion to dismiss an indictment on the basis of double jeopardy. On February 4, 1982, a Kansas City, Kansas, federal grand jury indicted Beachner Co. and its Secretary-Treasurer, Robert Beachner, on one count of bid-rigging in violation of section 1 of the Sherman Act, 15 U.S.C. § 1, and on one count of mail fraud in violation of 18 U.S.C. § 1341. This indictment {Beachner I) related to the alleged bid-rigging of a state highway construction project in Harvey County, Kansas. On May 7, 1982, both defendants were acquitted following a jury trial. On November 16, 1982, a second indictment was returned against Beachner Co., naming Jerry Beachner, a Vice-President, as a codefendant. This indictment (Beachner II) charged the defendants with three Sherman Act violations (15 U.S.C. § 1) and three mail fraud violations (18 U.S.C. § 1341) regarding three Kansas highway construction projects let on April 25, 1978 (Bourbon and Allen Counties), November 1, 1978 (Cowley County), and July 19, 1979 (Montgomery and Neosho Counties). After both defendants moved to dismiss on double jeopardy grounds, the district court held a pretrial evidentiary hearing as required by Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). At the close of this hearing, the district court granted Beachner Co.’s motion to dismiss the indictment and the government’s motion to sever defendant Jerry Beachner’s case for trial. The court found that the alleged bid-rigging schemes regarding the aforementioned highway projects were each part of a single, continuing conspiracy which had existed in Kansas since the early 1960’s. Thus, the court reasoned that to prosecute Beachner Co. under the second indictment would effectively put it in jeopardy twice for the same offense in violation of the fifth amendment to the United States Constitution. The issues presented on this appeal are whether the district court erred (1) in finding that the second indictment against Beachner Co. encompasses the same conspiracy in which" }, { "docid": "13493631", "title": "", "text": "South Gate. Count 27 refers to a California Form 700, Statement of Economic Interests, for calendar year 2001, in which Robles failed to disclose copying services paid for by Klistoff on Robles’s behalf. Counts 33 through 37 were charged against Robles alone. Robles was charged under 18 U.S.C. § 666 with accepting bribes from Klistoff in connection with the waste-hauling contract. C. Indictment and Trial The government filed the original indictment against Robles, Klistoff, and Espinoza in November 2004. It filed a First Superseding Indictment in December 2004, alleging forty counts against those same defendants. On March 10, 2005, Espinoza pled guilty to four counts of the First Superseding Indictment. On March 24, 2005, the government filed the Second Superseding Indictment against Robles, Klistoff, and Garrido. In June 2005, after Klistoff entered into a plea agreement, the government filed a redacted Second Superseding Indictment which deleted Klis-toff as a named defendant in the caption. The redacted Second Superseding Indictment charged Robles with twenty-one counts of honest services mail and wire fraud, four counts of money laundering, and five counts of bribery. Garrido was charged with five counts of honest services mail fraud. A jury convicted Robles and Garrido on all counts alleged in the redacted Second Superseding Indictment. The district court sentenced Robles to ten years in prison, fines, and restitution. Garrido was sentenced to fifty-one months in prison, fines, and restitution. Robles and Garrido timely appealed. II. A. Robles’s and Garrido’s 18 U.S.C. § 1346 Honest Services Fraud Convictions Robles was convicted of honest services mail and wire fraud on Counts 1 through 11, 13 through 17, 22 through 25, and 27. Garrido was convicted of honest services mail fraud on Counts 22 through 25, and 27. Honest services mail and wire fraud cases “rel[y] on the idea that ‘a public official acts as trustee for the citizens and the State ... and thus owes the normal fiduciary duties of a trustee, e.g., honesty and loyalty to them.’ ” United States v. Kincaid-Chauncey, 556 F.3d 923, 939 (9th Cir.2009) (quoting United States v. Silva-no, 812 F.2d 754, 759 (1st" }, { "docid": "13552487", "title": "", "text": "respect to the Summer Street transaction, and his alleged scheme to defraud the bank with respect to the sales of the Buxton Farms Road and Franklin Street properties. All the criminal charges set forth in the indictment stem from the same events addressed by the January 19, 1993 civil Notice of Charges. Morgan promptly moved to dismiss the indictment as violative of his Fifth Amendment right against double jeopardy. Upon Judge Daly’s denial of the motion, Morgan brought this interlocutory appeal. We affirm. DISCUSSION Before considering whether the indictment places defendant Morgan twice in jeopardy for the same offense, we note that this interlocutory appeal from a denial of a motion to dismiss on double jeopardy grounds is within the collateral order exception to the rule that appeals may be taken only from final judgments. See Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977); United States v. Amiel, 995 F.2d 367, 369 (2d Cir.1993); United States v. Helmsley, 864 F.2d 266, 268 (2d Cir.1988), cert. denied, 490 U.S. 1065, 109 S.Ct. 2063, 104 L.Ed.2d 628 (1989). Further, because a motion to dismiss on double jeopardy grounds presents a question of law, we review it de novo. See United States v. Botello, 991 F.2d 189, 192 (5th Cir.1993) (review of denial by district court of motion to dismiss indictment on double jeopardy grounds is de novo), cert. denied, — U.S. -, 114 S.Ct. 886, 127 L.Ed.2d 80 (1994). We turn to the merits. I Double Jeopardy Waiver Analysis turns first to whether appellant waived his right to assert a double jeopardy defense to the indictment laid against him. Morgan contends the district court determined in essence that when he entered into the stipulation, consented to the issuance of the order, and signed the consent judgment, he was aware of the possibility of subsequent criminal prosecution, and therefore waived this defense. Although no explicit finding of such a waiver was made, the district judge did point to that language in the settlement documents which stated that Morgan’s compliance with the terms of the settlement" }, { "docid": "15665634", "title": "", "text": "MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978); see also United States v. Valenzuela, 584 F.2d 374, 377 (10th Cir. 1978). Appellant relies upon the case of Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) [hereinafter Abney ] to support immediate appeal-ability. In Abney, the Court held that an order denying petitioner’s challenge to the sufficiency of an indictment, premised on the possibility of petitioner being tried twice for the same offense, is immediately appealable. Abney, 431 U.S. at pp. 659-662, 97 S.Ct. at pp. 2040-2041. The essence of appellant’s argument is that the district court’s order is immediately appealable because he is being put in double jeopardy. The government argues that there is no double jeopardy in that the California indictment, concerning tax fraud for the years of 1970 through 1973, has nothing whatsoever to do with the challenged indictment concerning the years of 1976 through 1977. Appellant has not asserted that there is any connection other than the plea agreement, between the crimes charged in the two indictments. We have reviewed the record and it is clear that a violation of the double jeopardy prohibition cannot result from trial on the challenged indictment. We have stated before that: “the mere recitation of the term ‘double jeopardy’ in the motion to dismiss does not bring defendant’s appeal within the Abney exception. Rather, it must appear from the record that a prior jeopardy has already attached, thus raising the possibility that a second trial may constitute an unlawful action.” United States v. Ritter, 587 F.2d 41, 43 (10th Cir. 1978) (citation omitted). It is well settled that the burden is on the defendant to establish the facts supporting his motion for dismissal on the ground of double jeopardy. See United States v. Rumpf, 576 F.2d 818, 823 (10th Cir.), cert. denied, 439 U.S. 893, 99 S.Ct. 251, 58 L.Ed.2d 239 (1978). Appellant has not met that burden. He has failed to present any evidence or argument that would suggest that he is being tried for the same offense twice. The bottom" }, { "docid": "17704906", "title": "", "text": "DAVID A. NELSON, Circuit Judge. Appellant S. Robert Davis was convicted of violating the federal mail fraud statute, 18 U.S.C. § 1341. This court overturned the conviction on the ground that the indictment, which was based on the “intangible rights” theory disavowed by the Supreme Court in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), was legally deficient. A superseding indictment was then returned, and Mr. Davis filed two motions to dismiss — one alleging a violation of the Double Jeopardy Clause and the other based on the statute of limitations. Both motions were denied by the district court, and Mr. Davis has taken an interlocutory appeal. We conclude that we lack jurisdiction to entertain a pretrial appeal from the district court’s ruling on the statute of limitations question. With respect to the double jeopardy issue — as to which the government concedes we have jurisdiction under the collateral order exception to the final judgment rule, Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)-we shall affirm the order of the district court. I Appellant Davis owned a house and a tract of undeveloped land in the Squirrel Bend section of Upper Arlington, Ohio. He planned to subdivide his vacant land, and the city planned to construct a public waterline in the area at an estimated cost of $80,000. Mr. Davis agreed to provide water and sewer improvements to people who purchased lots from him, and he was expected to pay $60,000 of the city’s cost. After discussions with Harold Hyrne, the city manager of Upper Arlington, Mr. Davis undertook to construct the Squirrel Bend waterline at his own expense. He had the line installed by Wright Brothers Excavating Company at a contract price of $36,296.54. Under § 903.12 of the Upper Arlington City Code, abutting property owners may “tap in” to a privately built waterline without the builder’s consent if they pay the builder a charge set by the city manager on the basis of the builder’s certification of “the entire cost of such improvement to the builder.”" }, { "docid": "13639694", "title": "", "text": "mistrial. The judge later questioned the jurors, recording that they had voted eleven to one for conviction on counts one, two, three, and five. The jury reconvened to hear the code-fendants’ cases. It acquitted Weisman on all three felony counts, acquitted Habalow on two of three felony counts, and could not agree on Habalow’s remaining felony count or either codefendant’s misdemeanor count. On August 2, Goland filed a motion to dismiss on the ground of double jeopardy. The court denied the motion after a hearing on August 28; Goland filed his notice of interlocutory appeal the same day. On September 19, the government filed a second superseding indictment. JURISDICTION We have jurisdiction to hear an interlocutory appeal of a denial of a motion to dismiss on the ground of double jeopardy under 28 U.S.C. § 1291. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). STANDARD OF REVIEW We review de novo a district court’s denial of a motion to dismiss the indictment on the ground of double jeopardy. United States v. Anzalone, 886 F.2d 229, 230 (9th Cir.1989); United States v. Schwartz, 785 F.2d 673, 676 (9th Cir.), cert. denied, 479 U.S. 890, 107 S.Ct. 290, 93 L.Ed.2d 264 (1986). DISCUSSION Goland claims that he should not be retried because to do so would place him in jeopardy a second time. He first argues that the bifurcation was illegal — the prosecuting attorney was clearly wrong in stating that the bifurcation would be contrary to no legal authority. Second, he contends the bifurcation deprived him of his right to have his entire case presented to the jury. In particular, the jury did not get to hear, before it retired to consider the charges against Goland, what Goland alleges would have been favorable testimony from Weis- man and two other witnesses that his code-fendants had planned to call. Third, Go-land contends that this denial of his “right to present a codefendant’s evidence” was a constitutional violation. Goland contends that the alleged errors are so great that he should not be retried. A second trial would" }, { "docid": "22881597", "title": "", "text": "that trust.” 65 Pa. Cons.Stat. § 1101.1. Here, the government presented sufficient evidence for a reasonable jury to find beyond a reasonable doubt that Kemp violated that trust by soliciting and accepting payment in exchange for taking official action. Accordingly, we find no plain error and reject Kemp’s challenge to his mail fraud convictions. B. Hoick’s and Umbrell’s Wire Fraud Convictions 1. Challenge to the Indictment Hoick and Umbrell lead off their attack on their wire fraud convictions by arguing that their convictions under the bribery theory of honest services fraud must be vacated because that theory was not charged in the indictment. We deem an indictment sufficient so long as it “(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.” United States v. Vitillo, 490 F.3d 314 (3d Cir.2007) (internal quotation marks omitted). Moreover, “no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution.” United States v. Rankin, 870 F.2d 109, 112 (3d Cir.1989). We exercise plenary review over this challenge. United States v. Hedaithy, 392 F.3d 580, 590 n. 10 (3d Cir.2004). We conclude that the indictment here adequately charged Hoick and Um-brell with the bribery theory of honest services wire fraud. The wire fraud counts of the indictment (counts 15-22) plainly alleged honest services fraud, charging Hoick and Umbrell with engaging in “a scheme to defraud the City of Philadelphia and its citizens of the right to defendant COREY KEMP’S honest services in the affairs of the City of Philadelphia.” (App. at 587.) Then, the specific factual allegations' — some of which were incorporated by reference to the allegations of the conspiracy charge, see Fed. R.Crim.P. 7(c)(1) (“A count may incorporate by reference an allegation made in another" }, { "docid": "7846274", "title": "", "text": "order denying a motion to dismiss an indictment on double jeopardy grounds where, as here, the defendant has raised a colorable double jeopardy claim. See Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. Grabinski, 674 F.2d 677, 678 (8th Cir.1982) (en banc). DISCUSSION The doctrine of collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). According to the doctrine of collateral estoppel, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. at 443, 90 S.Ct. 1189. The burden of proof is on the defendant to show that the verdict in the first trial necessarily decided the fact or issue sought to be precluded in the second trial. Dowling v. United States, 493 U.S. 342, 350, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990); United States v. Baugus, 761 F.2d 506, 508 (8th Cir.1985). We review the district court’s denial of a motion to dismiss an indictment on double jeopardy grounds de novo. United States v. Bennett, 44 F.3d 1364, 1368 (8th Cir.1995). The district court found that Bearden’s motion for a judgment of acquittal on the mail fraud conspiracy charge was granted because although Bearden admitted the existence of a conspiracy, “there was no proof that defendant agreed to join the conspiracy.” The parties do not dispute the basis for the judgment of acquittal. Moreover, Bearden does not dispute that conspiracy to commit mail fraud and mail fraud are distinct offenses. See, e.g., United States v. Pappas, 445 F.2d 1194, 1198 (3d Cir. 1971) (noting that conspiracy is a separate offense distinct from a related substantive crime). Relying on Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948), and United States v. Brown, 547 F.2d 438 (8th Cir. 1977), Bearden instead argues that because the Government went to trial on the theory that Bearden participated in a" }, { "docid": "5261653", "title": "", "text": "Brown I thus did not on its face preclude a retrial on the money or property charge because the panel did not rule that the evidence for that charge was insufficient. Nor are we persuaded by Bayly and Furst that the panel’s footnote reference to Enron as a “willing beneficiary” precludes a theory of Enron as a victim for all purposes. First, this contention does not account for the Enron shareholders, who were also alleged in the indictment to be victims apart from the corporation. Second, as part of the honest services discussion in Brown I, the “willing beneficiary” language was used to narrow the construction of honest services fraud to exclude the defendant’s conduct and to distinguish the case. The decision did not consider other avenues alleged for conviction, and instead noted that we “need not address the viability of the Government’s remaining theories of criminal liability (the money-or-property and books-and-records charges).” Enron was thus not excluded by the decision in Brown I as a victim for purposes of those charges. Brown’s contention that the original indictment alleged only an honest services wire fraud offense, and that therefore a retrial presents a pure double jeopardy issue, is contrary to a plain reading of Brown I, which specifically recognized that the indictment alleged three means for the conspiracy. Brown’s real argument is that without reference to honest services, the remaining allegations of the indictment are insufficient to state an offense. For example, he argues that the redacted indictment uses boilerplate language alleging a scheme to obtain money or property but fails to identify a specific object of that scheme. That contention is not a double jeopardy claim, however, and is not properly before us on interlocutory review. The defendants present additional challenges in the guise of double jeopardy but which similarly implicate sufficiency issues based on the district court’s ruling. The district court held that the participation of Enron executives in the barge deal did not preclude Enron and its shareholders from being victims of the fraud because the corporation and shareholders enjoy a separate identity from corporate officers and" }, { "docid": "5261649", "title": "", "text": "to the indictment on which the defendants were convicted at the first trial. The defendants moved to dismiss the redacted indictment, raising claims of double jeopardy and arguing in part that Brown I necessarily precluded a retrial. The district court denied the motion but certified the double jeopardy claims for interlocutory appeal. II. Defendants Bayly and Furst contest on double jeopardy grounds the money or property charge of the redacted indictment. They contend that they may not be retried insofar as the indictment alleges that they schemed to deprive Enron of money or property. They reason that the Government must prove for this charge that they intended to deceive the putative victim but that this court held in Brown I that Enron was a willing participant in the scheme. They further contend that although Enron and its shareholders are legally distinct, the district court erroneously determined that a fraud could be worked on the corporation given that senior executives, including Fastow, approved the deal and the executives’ actions show the corporation was not a victim. Finally, they argue that even if the shareholders could be victims, the redacted indictment fails to allege the deprivation of a legally cognizable money or property interest. They do not contend that retrial on the books and records charge would violate double jeopardy. In a separate brief, Defendant Brown argues that a retrial is barred by the Double Jeopardy Clause because the original indictment charged as the object of the wire fraud only the deprivation of the intangible right of honest services, a theory that Brown I rejected. According to Brown, the redacted indictment fails to allege a valid offense apart from the honest services charge because it fails to allege an identifiable and cognizable object of money or property as the basis for the fraud and fails to allege that any Merrill Lynch employee deprived or took anything away from Enron or its shareholders. “As traditionally understood, the Double Jeopardy Clause precludes multiple prosecutions and multiple punishments for the same offense.” United States v. Yeager. When a reviewing court determines that the evidence at" }, { "docid": "7846273", "title": "", "text": "motion for judgment of acquittal, the district court dismissed the conspiracy count. The jury was unable to reach a verdict on the mail fraud and money laundering counts, and the district court again declared a mistrial. A third trial was scheduled on the mail fraud and money laundering charges. Pri- or to trial, Bearden filed a motion to dismiss the remaining charges on double jeopardy grounds. On November 29, 2000, the district court denied the motion. The district court concluded that the judgment of acquittal on the conspiracy charge had been granted because although Bearden admitted the existence of a conspiracy, there was no proof that he agreed to join the conspiracy. The court held that double jeopardy did not bar Bearden’s retrial on the mail fraud and money laundering charges because a jury could find the elements of each offense without also finding that Bearden joined in an agreement to commit mail fraud. Bearden filed a timely notice of appeal on November 30, 2000. This court has jurisdiction over an appeal from a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds where, as here, the defendant has raised a colorable double jeopardy claim. See Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. Grabinski, 674 F.2d 677, 678 (8th Cir.1982) (en banc). DISCUSSION The doctrine of collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). According to the doctrine of collateral estoppel, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. at 443, 90 S.Ct. 1189. The burden of proof is on the defendant to show that the verdict in the first trial necessarily decided the fact or issue sought to be precluded in the second trial. Dowling v. United States, 493 U.S. 342, 350, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990); United States v. Baugus," }, { "docid": "5261650", "title": "", "text": "Finally, they argue that even if the shareholders could be victims, the redacted indictment fails to allege the deprivation of a legally cognizable money or property interest. They do not contend that retrial on the books and records charge would violate double jeopardy. In a separate brief, Defendant Brown argues that a retrial is barred by the Double Jeopardy Clause because the original indictment charged as the object of the wire fraud only the deprivation of the intangible right of honest services, a theory that Brown I rejected. According to Brown, the redacted indictment fails to allege a valid offense apart from the honest services charge because it fails to allege an identifiable and cognizable object of money or property as the basis for the fraud and fails to allege that any Merrill Lynch employee deprived or took anything away from Enron or its shareholders. “As traditionally understood, the Double Jeopardy Clause precludes multiple prosecutions and multiple punishments for the same offense.” United States v. Yeager. When a reviewing court determines that the evidence at the first trial was insufficient and reverses a conviction, a retrial will be barred by double jeopardy. See Burks v. United States. A reversal on any other ground will not foreclose a second trial. United States v. Scott. The Double Jeopardy Clause also incorporates the collateral estoppel doctrine, which means that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson. The defendants’ arguments in this appeal largely implicate this latter aspect of double jeopardy and require us to revisit Brown I. Whether a prosecution violates the Double Jeopardy Clause or is precluded by collateral estoppel are issues of law that we review de novo. We are not persuaded that our decision in Brown I precludes a retrial. Our opinion there was guided by the general verdict rule, which “requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it" }, { "docid": "22881598", "title": "", "text": "omitted). Moreover, “no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution.” United States v. Rankin, 870 F.2d 109, 112 (3d Cir.1989). We exercise plenary review over this challenge. United States v. Hedaithy, 392 F.3d 580, 590 n. 10 (3d Cir.2004). We conclude that the indictment here adequately charged Hoick and Um-brell with the bribery theory of honest services wire fraud. The wire fraud counts of the indictment (counts 15-22) plainly alleged honest services fraud, charging Hoick and Umbrell with engaging in “a scheme to defraud the City of Philadelphia and its citizens of the right to defendant COREY KEMP’S honest services in the affairs of the City of Philadelphia.” (App. at 587.) Then, the specific factual allegations' — some of which were incorporated by reference to the allegations of the conspiracy charge, see Fed. R.Crim.P. 7(c)(1) (“A count may incorporate by reference an allegation made in another count.”); see also United States v. Markus, 721 F.2d 442, 444 (3d Cir.1983)— were sufficient to alert Hoick and Umbrell that the government planned to pursue both theories. The indictment refers to “the benefits that HOLCK and UM-BRELL extended to Kemp with the intent to influence KEMP’s official actions” (App. at 491), and charges that “defendants GLENN K. HOLCK and STEPHEN M. UMBRELL, on behalf of their employer, Commerce Bank, provided benefits to Kemp in the form of otherwise unavailable loans in exchange for favorable decisions by KEMP as Treasurer of Philadelphia” (App. at 554). These allegations were sufficient to charge Hoick and Umbrell with honest services fraud under a bribery theory, and accordingly, we reject Hoick and Umbrell’s argument that the indictment should have been dismissed. 2. The “Stream of Benefits” Instruction Hoick and Umbrell next claim that the District Court misstated the law when instructing the jury on the bribery theory of honest services fraud, such that the jury was invited to convict if it concluded that Hoick and Umbrell had provided benefits" }, { "docid": "15747969", "title": "", "text": "the court to dismiss the Travel Act charges on double jeopardy grounds, defendants also moved the court to compel the government to elect one of those three counts and to dismiss the other two as multiplicitous. The District Court granted the motion to dismiss with respect to the conspiracy charge alone. It found that “under the totality of the circumstances,” the government had failed to prove by a preponderance of the evidence that the California and Michigan indictments alleged separate conspiracies. As to the Travel Act counts, the motion to dismiss was denied, on the ground that those charges did not merge into the conspiracy conviction. The court did, however, grant defendants’ motion to compel the government to elect a single Travel Act count. This ruling was based on the theory that the Travel Act’s purpose is to penalize a course of criminal conduct furthered by acts of interstate travel. According to the District Court, the acts of travel themselves merely confer federal jurisdiction; they do not represent units of prosecution. Defendants appeal the District Court’s refusal to dismiss the Travel Act charges on double jeopardy grounds. The government cross-appeals both the dismissal of the conspiracy charge and the order compelling election of a single Travel Act count. In its decision to dismiss the conspiracy charge on double jeopardy grounds, the District Court issued three rulings. The government contests only one of those rulings here. First, the court held that once the defendants advanced a non-frivolous claim of double jeopardy, the burden shifted to the government to show, by a preponderance of the evidence, that the conspiracies alleged in the two indictments were in fact separate. Although the government makes no contrary assertion on appeal, we deem it advisable to clarify our position on this issue in the wake of the Supreme Court’s decision in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Abney held that the denial of a motion to dismiss an indictment on double jeopardy grounds is immediately appealable. As a consequence, in order to make an appropriate record to test" }, { "docid": "5261648", "title": "", "text": "services wire fraud. The panel reasoned that while honest services fraud generally involves bribery, kickbacks, or self-dealing, the defendants’ conduct was disassociated from such actions. The panel noted that the Enron employees here breached a fiduciary duty in pursuit of corporate earnings goals, which Enron had tied through incentives to employee compensation. The panel noted in a footnote that Enron’s corporate incentive policy, coupled with “senior executive support” for the barge transaction, created an understanding that Enron was a “willing beneficiary[ ] of the scheme” and set the case apart from other honest services fraud cases. We specifically limited our holding to be that the conduct alleged by the Government was not a federal crime under the honest services theory of fraud, and we expressly declined to address the viability of the money or property charge and the books and records charge remaining in the indictment. Upon remand, the Government moved to redact the indictment to remove all references to the honest services theory of fraud. The redacted version of the indictment is otherwise identical to the indictment on which the defendants were convicted at the first trial. The defendants moved to dismiss the redacted indictment, raising claims of double jeopardy and arguing in part that Brown I necessarily precluded a retrial. The district court denied the motion but certified the double jeopardy claims for interlocutory appeal. II. Defendants Bayly and Furst contest on double jeopardy grounds the money or property charge of the redacted indictment. They contend that they may not be retried insofar as the indictment alleges that they schemed to deprive Enron of money or property. They reason that the Government must prove for this charge that they intended to deceive the putative victim but that this court held in Brown I that Enron was a willing participant in the scheme. They further contend that although Enron and its shareholders are legally distinct, the district court erroneously determined that a fraud could be worked on the corporation given that senior executives, including Fastow, approved the deal and the executives’ actions show the corporation was not a victim." }, { "docid": "6138196", "title": "", "text": "a “failure-to-disclose” theory of honest services liability that the Supreme Court declared unconstitutional in Skilling v. United States, decided after the trial. The district court instructed the jury that it could find Barraza guilty of wire fraud if he had either (1) defrauded the state of the intangible right of honest services or (2) obtained money by fraud. In Count One, the jury found both types of fraud, but in Count Two, the jury only found honest services fraud. Barraza’s indictment stated that he committed honest services fraud in two ways: (1) by “failing] to disclose to his constituency and to the State of Texas that he received money,” and (2) by accepting bribes. However, under Skilling, honest services fraud only consists of bribery and kickbacks, not the failure to disclose receipt of money. Therefore, the first portion of the indictment was an improper grounds for conviction. Barraza challenges his conviction on an alternative-theory error — the jury was instructed on alternative theories of guilt, rendered a general verdict, and could have relied on an invalid theory in returning the guilty verdict. The Government concedes error, but the question remains whether the error was harmless. The parties dispute the appropriate standard of review, with the government urging plain error because Barraza did not challenge the honest services statute as void for vagueness in his motion for new trial, nor did he object to the jury instructions. However, Barraza’s counsel filed a motion for continuance on the ground that the Skilling oral argument was scheduled to occur one month after the trial. Barraza sought to postpone the trial until after the opinion in Skilling was handed down, noting that the constitutionality of the statute was being challenged. The district court denied the motion, finding that the outcome of the Supreme Court case would be irrelevant or could be addressed through jury instructions. In support of the plain error standard, the government cites a similar Third Circuit case, which applied this standard, noting, however, “one could view [the plain error] application here as somewhat harsh, given the defendant’s objection to the breadth" }, { "docid": "14194691", "title": "", "text": "at auction on July 20, 1995. On appeal, German contends that the forfeiture of the truck constituted punishment within the meaning of the double jeopardy clause, and the government’s current prosecution against him for violation of 21 U.S.C. § 841(a)(1) subjects him to double jeopardy. II. Discussion As an initial matter, we first address the government’s argument that the court lacks jurisdiction over this appeal. Our authority to hear the appeal stems from Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). There, the Supreme Court held that appellate courts have jurisdiction to entertain an appeal from a pretrial order denying dismissal sought on double jeopardy grounds. Id. at 663, 97 S.Ct. at 2042. The Court reasoned that, as the double jeopardy clause forbids a second trial, such a denial was within the “collateral order” exception to the final judgment rule of appellate jurisdiction. Id. Accordingly, we have jurisdiction to hear German’s interlocutory appeal of the pretrial order denying his motion to dismiss the superseding indictment on double jeopardy grounds. A district court’s denial of a motion to dismiss an indictment on double jeopardy grounds is reviewed de novo. United States v. Hudson, 14 F.3d 536, 539 (10th Cir.1994). The underlying factual findings of the district court are reviewed for clear error. O’Connor v. R.F. Lafferty & Co., Inc., 965 F.2d 893, 901 (10th Cir.1992). The double jeopardy clause of the Fifth Amendment to the United States Constitution prohibits successive prosecution or multiple punishment for “the same offense.” Witte v. United States, — U.S.-,-, 115 S.Ct. 2199, 2202, 132 L.Ed.2d 351 (1995). Significantly, the language of the clause protects against more than the actual imposition of two punishments for the same offense; by its terms, it protects a criminal defendant from being twice put in jeopardy for such punishment. Id. at-, 115 S.Ct. at 2204. The Fifth Amendment’s guarantee against double jeopardy protects against three types of abuses: (1) a second prosecution for the same offense after an acquittal; (2) a second prosecution for the same offense after a conviction, and (3) multiple punishments for" }, { "docid": "3974729", "title": "", "text": "1978 (Bourbon and Allen Counties), November 1, 1978 (Cowley County), and July 19, 1979 (Montgomery and Neosho Counties). After both defendants moved to dismiss on double jeopardy grounds, the district court held a pretrial evidentiary hearing as required by Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). At the close of this hearing, the district court granted Beachner Co.’s motion to dismiss the indictment and the government’s motion to sever defendant Jerry Beachner’s case for trial. The court found that the alleged bid-rigging schemes regarding the aforementioned highway projects were each part of a single, continuing conspiracy which had existed in Kansas since the early 1960’s. Thus, the court reasoned that to prosecute Beachner Co. under the second indictment would effectively put it in jeopardy twice for the same offense in violation of the fifth amendment to the United States Constitution. The issues presented on this appeal are whether the district court erred (1) in finding that the second indictment against Beachner Co. encompasses the same conspiracy in which it was previously acquitted, and (2) in dismissing the three mail fraud counts in the indictment along with the Sherman Act counts because it found the existence of a single Sherman Act conspiracy. We agree with the district court that a single, continuing bid-rigging conspiracy was present in this case. Further, we hold that the mail fraud actions were an integral part of the overall bid-rigging scheme; hence, it was proper for the district court to dismiss the entire Beachner II indictment filed against Beachner Co. I. BACKGROUND At the double jeopardy evidentiary hearing, both the government and Beachner Co. introduced evidence, including testimony by seven Kansas asphalt contractors, which established the following facts. The Kansas Department of Transportation occasionally holds competitive bid-lettings for state highway construction projects which require asphalt work. Since the 1960’s, however, a scheme to submit collusive bids has often been used by the state asphalt contractors to allow them to avoid competition and ensure higher profits (R., Vol. 6 at 59-64; Vol. 8 at 512). Specific terms such as “setup" }, { "docid": "6899491", "title": "", "text": "Poirier were indicted for conspiracy and wire fraud, including the honest services fraud theory of § 1346. The district court sustained the conspiracy and wire fraud counts of the indictment against Appellees’ motion to dismiss. The court granted part of the motion, however, concluding that the allegations of the indictment were insufficient on the § 1346 charges. The court held that § 1346 can be applied to private sector honest services fraud only when the defendant breached a “clear fiduciary duty.” The court found that the indictment failed to allege such a duty and therefore dismissed the § 1346 charges. II. DISCUSSION This court reviews de novo the dismissal of an indictment. See United States v. Dabbs, 134 F.3d 1071, 1079 (11th Cir.1998). “Under Fed.R.Crim.P. 12(b) an indictment may be dismissed where there is an infirmity of law in the prosecution; a court may not dismiss an indictment, however, on a determination of facts that should have been developed at trial.” United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir.1987). “[T]his court must reverse a dismissal if it concludes that the factual allegations in the indictment, when viewed in the light most favorable to the government, were sufficient to charge the offense as a matter of law.” Id. The Government appeals the district court’s dismissal of the § 1346 counts on two grounds. First, the Government argues that the district court erred in its interpretation of private sector honest services fraud under § 1346. Second, the Government asserts that the allegations of the indictment relating to the § 1346 charges were sufficient to survive the motion to dismiss. A. Application of § 1346 to Private Sector “Honest Services” Fraud. The federal wire fraud statute prohibits the use of the interstate wires to carry out a fraudulent scheme. The statute provides that “[w]hoever, having devised or intending to devise any scheme or artifice to defraud ... transmits or causes to be transmitted by means of wire ... communication in interstate or foreign commerce, ... for the purpose of executing such scheme or artifice,” commits a federal offense. 18 U.S.C. §" }, { "docid": "19752502", "title": "", "text": "releases is certainly relevant to the charge of conspiracy to commit wire and securities fraud, but is not required to prove the essential elements of the offense. Accordingly, collateral estoppel does not bar the government from introducing evidence originally offered in the first trial. The admissibility of that evidence is a purely evidentiary matter based on the relevance of that information. V. The government contends that Defendant Shelby’s Motion to Dismiss on Collateral Estoppel Grounds is frivolous and requests that the Court make such a finding in this Order, so that the government may proceed with trial as scheduled. In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Supreme Court recognized a statutory right to pretrial interlocutory appeal of the denial of a motion to dismiss an indictment on the basis of double jeopardy. The Court emphasized that the rights conferred under the Double Jeopardy Clause “would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence” because the Double Jeopardy Clause is not only a protection against twice being convicted, but is also a “guarantee against being twice put to trial for the same offense.” Id. at 660-61, 97 S.Ct. 2034. See also United States v. Angleton, 221 F.Supp.2d 696, 734 (S.D.Tex.2002). The Supreme Court noted, however, that its holding may encourage “dilatory appeals,” and that such “problems of delay” may be ameliorated by expedited appeals and procedural rules. Id. at 662 n. 8, 97 S.Ct. 2034. In United States v. Dunbar, 611 F.2d 985, 987 (5th Cir.1980), the Fifth Circuit set forth procedural rules for dual jurisdiction of trial and appellate courts during interlocutory appeals from orders denying motions to dismiss based on double jeopardy. The court held that: Henceforth, the district courts, in any denial of a double jeopardy motion, should make written findings determining whether the motion is frivolous or nonfrivolous. If the claim is frivolous, the filing of a notice of appeal by the defendant shall not divest the district court of jurisdiction over the case. If nonfrivolous, of course, the" } ]

[ { "docid": "22712102", "title": "", "text": "doubt’ ” as to a defendant’s competence, and the Court concluded “that the evidence introduced on Robinson’s behalf entitled him to a hearing on this issue.” 383 U. S., at 385. See United States v. Marshall, 458 F. 2d 446, 450 (CA2 1972). As was true of Illinois in Robinson, Missouri’s statutory scheme “jealously guards” a defendant’s right to a fair trial. Missouri Rev. Stat. § 552.020 (1) (1969) provides: “No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.” Section 552.020 (2), see n. 6, provides that a judge or magistrate shall, “upon his own motion or upon motion filed by the state or by or on behalf of the accused,” order a psychiatric examination whenever he “has reasonable cause to believe that the accused has a mental disease or defect excluding fitness to proceed.” Section 552.020 (3) prescribes the contents of a report of the psychiatric examination, and § 552.030 (6) requires the court to hold a hearing if the opinion relative to fitness to proceed which is required to be included in the report is contested. In addition, the trial court may conduct a hearing on its own motion. Such a procedure is, on its face, constitutionally adequate to protect a defendant’s right not to be tried while legally incompetent. Our task is to determine whether the proceedings in this case were consistent with petitioner’s right to a fair trial. At the outset we are met by respondent's argument that the Court is bound by “limitations placed on proceedings under” Missouri Supreme Court Rule 27.26. Brief for Respondent 23. Specifically, respondent notes that under Rule 27.26 (f) petitioner had “the burden of establishing his grounds for relief by a preponderance of the evidence,” and that the appellate-review function of the Missouri Court of Appeals was limited by Rule 27.26 (j) “to a determination of whether the findings, conclusions and judgment of the trial" } ]

[ { "docid": "23109433", "title": "", "text": "contemplates that the burden will lie with the party making a motion to determine competency. 18 U.S.C. § 4241. Specifically, 18 U.S.C. § 4241(a) provides that [a]t any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion ... if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. 18 U.S.C. § 4241(a). Moreover, the Supreme Court has stated, albeit in dicta, that the burden of establishing incompetence rests with the defendant. See Cooper v. Oklahoma, 517 U.S. 348, 362, 116 S.Ct. 1373, 1380, 134 L.Ed.2d 498 (1996) (“Congress has directed that the accused in a federal prosecution must prove incompetence by a preponderance of the evidence.”) (citing 18 U.S.C. § 4241); see also United States v. Robinson, 404 F.3d 850, 856 (4th Cir.) (“Under federal law, the defendant has the burden ... ‘[to show] that the defendant is ... mentally incompetent.”’) (citing 18 U.S.C. § 4241 and Cooper), cert. denied, - U.S. -, 126 S.Ct. 288, 163 L.Ed.2d 253, - U.S. -, 126 S.Ct. 469, 163 L.Ed.2d 356 (2005). Although Supreme Court precedent points in that direction, our predecessor court has stated that “[t]here can be no question that in federal criminal cases the government has the burden of proving [a] defendant competent to stand trial at the [competency] hearing.” United States v. Makris, 535 F.2d 899, 906 (5th Cir.1976) (emphasis added) (“Makris IF). However, Makris II is not on point because it involved the government’s pre-trial motion to determine the competency of the defendant, and did not involve a defendant’s motion to withdraw a guilty plea based on incompetency. More importantly, the competency statute in Makris II, 18 U.S.C. § 4244, was" }, { "docid": "22040446", "title": "", "text": "District Court that Jones had been prescribed psychiatric medication and requested a competency hearing. The District Court agreed to hold such a hearing. When Jones’s sentencing date was reached, however, neither the parties nor the Court mentioned holding a competency hearing, and the District Court proceeded to sentence Jones without conducting such a hearing. The District Court’s failure to hold a competency hearing constituted error under the circumstances of this case. Pursuant to 18 U.S.C. § 4241(a), a criminal defendant shall be subjected to a competency hearing “if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(a). Where such “reasonable cause” exists, even if neither the defendant nor the Government moves for such a hearing, the court shall conduct such a hearing on its own motion. Id.; see also United States v. Leggett, 162 F.3d 237, 241 (3d Cir.1998); United States v. Renfroe, 825 F.2d 763, 766 (3d Cir.1987) (holding that the court must have “reasonable doubt” as to competency to order a hearing). Our criminal justice system has long recognized that “‘a person whose mental condition is such that [the person] lacks the capacity to understand the nature and the object of the proceedings^] ... to consult with counsel, and to assist in preparing [a] defense may not be subjected to a trial.’ ” Leggett, 162 F.3d at 241 (quoting Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)). The conviction of a legally incompetent person violates due process. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Leggett, 162 F.3d at 241. “Since we must decide whether the district court properly applied the standard for determining the necessity of a competency hearing, our review is plenary.” Leggett, 162 F.3d at 241; Renfroe, 825 F.2d at 766. If the District Court applied the proper legal standard," }, { "docid": "2499868", "title": "", "text": "& L. 96, 97-98 (1996)(competency law in both Canada and the United States finds its roots in English common law); Note, Incompetency to Stand Trial, 81 Harv. L. Rev. 454, 454 (1967)(“[t]he common law provided, as a matter of fairness and humanity, that a person could not be criminally tried” if incompetent). Blackstone explained, [i]f a man in his sound memory commits a capital offence, and before arraignment for it he becomes mad, he ought not to be arraigned for it because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? 4 William Blackstone, Commentaries *24. Because it was also recognized early on that defendants, knowing they could avoid trial by claiming mental defect might falsely do so, hearings on the issue of incompetence were strongly encouraged. 1 Hale P.C. *35 (“there may be great fraud in this matter ... the judge, before respite of trial or judgment, may do well to impanel a jury to inquire ... whether it be real or counterfeit”). Rules for raising the issue of a defendant’s competence in modern federal criminal cases, and the basic procedures for trial-related competency hearings are codified in Section 4241 of title 18 of the United States Code. See United States v. Renfroe, 825 F.2d 763, 766 (3rd Cir.1987)(discussing Congress’s decision to codify the standards of Dusky); see also 1 Charles Alan Wright, Federal Practice and Procedure § 196, at 719 (1982)(enactment of the original competency statute in 18 U.S.C. § 4244 and challenges to its constitutionality). The law provides: At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may" }, { "docid": "19278289", "title": "", "text": "could have exercised greater diligence locating additional psychiatrists to examine his client prior to the competency hearing. As pointed out by appellate counsel for Soldevila, after Attorney Nogueras raised the issue of Solde-vila’s competence to be sentenced, “defense counsel did nothing to support his previous suggestion that defendant may have been incompetent ... from November 30, 1992 to May 19, 1993, trial counsel did nothing, waiting virtually until the eve of the next proceedings to take any action. Thus, defense counsel never retained a psychiatrist to examine defendant, nor did he take any other action calculated to flesh out facts supporting the defense position.” At no time prior to May 25, the final day of the competency hearing, did anyone contend that Soldevila was malingering. Attorney Nogueras was not given doctor Duncan’s final report, concluding that Soldevila was malingering, until after 4:00 p.m. on May 25, only moments before the final hearing. In light of this surprise, attorney Nogueras was unable to prepare any response to doctor Duncan’s allegedly surprising conclusion. Attorney Nogueras was diligent in responding to the allegations that Soldevila was malingering as soon as possible. By no means do we endorse Attorney No-gueras’ behavior in waiting until the last minute to try to obtain his own experts, followed by what could be perceived as a strategy to buy more time by first asking the court for a recess in order for doctor Duncan to reevaluate Soldevila and then filing a motion for a continuance in order to have time to respond to any findings doctor Duncan might make. Following doctor Duncan’s new and unexpected conclusion that Soldevila was malingering, however, Soldevila was entitled to an opportunity to prepare a response to that finding. “[AJppellant was entitled to call psychiatric witnesses of his own choosing who, after examining appellant, could testify as to his mental state.” United States v. Flynt, 756 F.2d at 1359. 2. Utility of the Continuance Where a continuance is sought in order to provide time for a psychiatric evaluation, a defendant cannot be expected to present to the court, in advance, the substance of" }, { "docid": "19278294", "title": "", "text": "have responded to doctor Duncan’s new and serious charge that he was malingering. A defendant’s due process right to a fair trial includes the right not to be tried, convicted or sentenced while incompetent. Drope v. Missouri, 420 U.S. 162, 172-73, 95 S.Ct. 896, 904, 43 L.Ed.2d 103 (1975). Congress recognized and codified the right to a determination of mental competency to stand trial in the Comprehensive Crime Control Act of 1984, 18 U.S.C. § 4241. This statute “permits motions to determine [the] competency [of a defendant] ‘at any time after the commencement of prosecution for an offense and prior to the sentencing of the defendant....’” United States v. Renfroe, 825 F.2d 763, 766 (3d Cir.1987) (quoting 18 U.S.C. § 4241(a)) (emphasis added). Under 18 U.S.C. § 4241(a), a court is required to hold a competency hearing: if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. United States v. Pryor, 960 F.2d 1, 2 (1st Cir.1992). In order to find a defendant competent to stand trial “it is not enough for the district court judge to find that the defendant is oriented to time and place and has some recollection of events.” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (internal quotations omitted). Instead, the “test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” Id. (internal quotations omitted). Soldevila’s responses to Attorney Noguer-as’ questions and Soldevila’s failure to make an allocution at sentencing suggested that Soldevila may not have had the constitutionally required “rational as well as factual understanding of the proceedings.” Although doctor Duncan’s report suggested that Soldé- vila was merely malingering, Soldevila was clearly prejudiced by his inability to present witnesses that could respond to" }, { "docid": "17655152", "title": "", "text": "consulted with the Criminal Appellate Section of the Department of Justice, which confirmed that 18 U.S.C. § 4244 sets forth the procedures that apply where issues regarding the defendant’s mental health including competency are raised post — conviction but pre — sentencing.” The Court disagrees. DISCUSSION I. Legal Standards The parties do not dispute that Mr. Chaudhry suffers from mental illness. The question is, given his mental condition, what are the next steps the Court should take? The crux of the parties’ dispute is whether 18 U.S.C. § 4241 or § 4244 should apply where a defendant has already been convicted but has not yet been sentenced. The two statutes at issue fall in the chapter of the criminal code titled “Offenders ■with Mental Disease or Defect.” A. Section 1211 Defendant contends the competency determination outlined by 18 U.S.C. § 4241 applies to this case. That section, titled “Determination of mental competency to stand trial to undergo postrelease proceedings,” provides that “[aft any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant ... the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant.” 18 U.S.C. § 4241(a) (emphasis added). The Court is directed to grant the motion “if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” Id. If the Court finds by a preponderance of the evidence that the defendant is incompetent, the Court “shall commit the defendant to the custody of the Attorney General.” Id. § 4241(d). The Attorney General shall hospitalize the defendant: (1) for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward; and (2)" }, { "docid": "19278293", "title": "", "text": "him [if he had] been given more time.... In failing to grant the requested continuance ... the trial court clearly abused its discretion.’ (citation omitted)”) (quoted in Flynt, 766 F.2d at 1360). The continuance would also have helped counsel prepare an explanation for Soldevila’s responses at sentencing. 3. Inconvenience Undeniably, the prospect of a continuance implied some inconvenience to the district court and to doctor Duncan. Doctor Duncan was not a local witness. The postponement of the competency hearing from May 24 to May 25 had already required doctor Duncan to remain in Puerto Rico an additional day. “Nonetheless, the district court could have held the continuance [Soldevila] sought to one or two days. Indeed, the district court could have taken an active role in making sure the evaluation took place and quickly. Balanced against ... [Soldevila’s need for] a psychiatric evaluation, the inconvenience did not justify the denial.” Pope, 841 F.2d at 957. 4. Prejudice In the present case, Soldevila was unable, without the continuance, to present witnesses of his own choosing that might have responded to doctor Duncan’s new and serious charge that he was malingering. A defendant’s due process right to a fair trial includes the right not to be tried, convicted or sentenced while incompetent. Drope v. Missouri, 420 U.S. 162, 172-73, 95 S.Ct. 896, 904, 43 L.Ed.2d 103 (1975). Congress recognized and codified the right to a determination of mental competency to stand trial in the Comprehensive Crime Control Act of 1984, 18 U.S.C. § 4241. This statute “permits motions to determine [the] competency [of a defendant] ‘at any time after the commencement of prosecution for an offense and prior to the sentencing of the defendant....’” United States v. Renfroe, 825 F.2d 763, 766 (3d Cir.1987) (quoting 18 U.S.C. § 4241(a)) (emphasis added). Under 18 U.S.C. § 4241(a), a court is required to hold a competency hearing: if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of" }, { "docid": "2436762", "title": "", "text": "individually, raises three challenges to his conviction, two of which concern the district court’s denial of his motion under 18 U.S.C. § 4241(a) for a mental competency hearing; the last concerns the sufficiency of the evidence to prove Petros’ participatory link to the RICO conspiracy. A. Psychiatric Examination First, Petros asserts the district court erred in denying his pre-trial motion for a psychiatric examination. That motion was made on March 20, 1991, pursuant to 18 U.S.C. § 4241(a), which provides that “[a]t any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant.” 18 U.S.C. § 4241(a). This is essentially a two-phase process, requiring the court to grant the motion for a hearing before it is obligated to actually hold the competency hearing. Shortly after Petros’ motion, the district court held a hearing to inquire “if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense” exists. Id. Following the hearing, the court issued a written entry denying Petros’ motion for a formal competency hearing, finding no “reasonable cause” to believe he was incompetent. Pet-ros argues that decision-was erroneous because the court failed to sufficiently consider his evidence of a history of mental incompetency. Section 4241(a) prescribes the procedural formula to be used by a district court to decide if a defendant deserves a hearing to determine if he is competent to stand trial, the mental competency of a criminal defendant being a fundamental predicate to a fair trial under the Due Process Clause of Fifth Amendment. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966); United States v. Collins, 949 F.2d 921, 924 (7th Cir.1991). The starting point in all this is the notion" }, { "docid": "19871109", "title": "", "text": "nature of the evidence and the court’s responsibility vis-a-vis the discovery of that evidence. Therefore before ruling, we briefly review the court’s duty when confronted with evidence that places a person’s mental competence in issue. b. is u.s.c. §§ mi-mr The psychological evaluations and August 15, 1991 hearing come under the rubric of the determination of defen dant’s mental competency to stand trial. The procedures which courts must follow when the competency of a defendant is placed at issue are contained in 18 U.S.C. §§ 4241-4247. Section 4241(a) provides: Motion to determine competency of defendant — At any time after commencement of a prosecution for an offense and prior to sentencing of the defendant, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. 18 U.S.C. § 4241(a) (emphasis added). Where the “reasonable cause” standard has been met, a district court is required to hold a hearing sua sponte. Hernández-Hernández v. United States, 904 F.2d 758, 760 (1st Cir.1990); Figueroa-Vázquez v. United States, 718 F.2d 511, 512 (1st Cir.1983) (same standard applied to hearings under 18 U.S.C. § 4244). “Due process requires a hearing if evidence ‘raises a reasonable doubt about the defendant’s competency.’ ” Figueroa-Vázquez, 718 F.2d at 512 (quoting de Kaplany v. Enomoto, 540 F.2d 975, 981 (9th Cir.1976) (en banc)). See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Even after conviction and prior to sentencing, the need for defendant to be competent survives. United States v. Pellerito, 878 F.2d 1535, 1544 (1st Cir.1989). Here, we are not making a finding" }, { "docid": "22968528", "title": "", "text": "imposition of cumulative punishments for the violation of these two statutes does not violate the double jeopardy clause. C. Failure to Hold a Hearing to Determine Competency for Sentencing Finally, Mr. Garrett argues that the district court erred in denying his motion for a hearing pursuant to 18 U.S.C. § 4241(a) to determine his competency to be sentenced. The statute provides as follows: At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. 18 U.S.C. § 4241(a) (emphasis supplied). The statute itself sets forth the standard that the district court must use in granting or denying a competency hearing: “[I]f there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense,” “[t]he court shall grant the motion.” 18 U.S.C. § 4241(a) (emphasis supplied); see United States v. White, 887 F.2d 705, 710 (6th Cir.1989). As the statutory language suggests, the need for competency also extends beyond trial to the sentencing phase of a proceeding, United States v. Pellerito, 878 F.2d 1535, 1544 (1st Cir.1989), and the failure to grant such a hearing in the face of sufficient evidence to establish reasonable cause to believe that a defendant is mentally incompetent is a violation of due process. See Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966); United States v." }, { "docid": "19278269", "title": "", "text": "TORRUELLA, Circuit Judge. On August 17, 1992, a jury found defendant-appellant Angel A. Soldevila-López (“Soldevila”) guilty of four counts of conspiracy to possess with the intent to distribute fifty kilograms of cocaine and using a communication facility in the commission of the offense, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 843(b), and 846. On November 27, three days before the sentencing date of November 30, trial counsel for Soldevila, Nicolás Nogueras (“Attorney Nogueras”) raised the issue of Soldevi-la’s competence to be sentenced in a motion requesting psychiatric and psychological examination. The district court granted Solde-vila’s motion. Following a psychiatric evaluation by both a court appointed psychiatrist and a court appointed psychologist, a competency hearing was set for May 24, 1993. At the hearing, upon the suggestion of counsel for Solde-vila, the court concluded that Soldevila should be reevaluated on that day to determine his competency for sentencing purposes. Dr. Scott A Duncan, the court appointed psychologist, reevaluated Soldevila and the hearing continued on the next day. On May 25, doctor Duncan presented an addendum to his previous evaluation of Sol-devila, stating for the first time that Soldevi-la was “malingering” (i.e., feigning incompetency). The district court denied Soldevila’s motion for a continuance, found Soldevila competent to be sentenced and imposed sentence. Soldevila appeals from the final judgment of conviction and sentence. BACKGROUND Soldevila has a recent history of psychiatric problems. As recently as the spring of 1992 he was receiving psychotherapy, including prescription medications for his illness. This information, however, was not brought to the attention of the district court at any time during trial or at anytime prior to Attorney Nogueras’ motion for psychiatric and psychological evaluation of November 27, 1992. In the November 27 motion, Attorney Nogueras stated that Soldevila, in conversation with counsel, “looks and reacts introvert-edly, like absent from the conversation, very depressed, and in a mental and emotional condition that requires a psychiatric and psychological examination before sentencing.” Attorney Nogueras indicated that he had observed related symptoms during trial, but had attributed them to Soldevila’s anxiety, believing they were “due to" }, { "docid": "20461119", "title": "", "text": "includes an absolute right not to be tried, or that a competency determination cannot be reviewed effectively on appeal after conviction. On the contrary, the Court has said that “[djouble jeopardy and speech or debate rights are sui generis in this regard.” Flanagan, 465 U.S. at 267, 104 S.Ct. 1051; see also Mohawk Indus., Inc. v. Carpenter, 558 U.S. ——, 130 S.Ct. 599, 602, — L.Ed.2d - (2009) (“[Tjhe class of collaterally appealable orders must remain ‘narrow and selective in its membership.’ ” (quoting Will v. Hallock, 546 U.S. 345, 350, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006))). At base, incompetency concerns a right to a fair trial. See Drope, 420 U.S. at 172, 95 S.Ct. 896 (“[Tjhe failure to observe procedures adequate to protect a defendant’s light not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.”). That right can be protected adequately by post-conviction appellate review. Accordingly, the district court’s pretrial order finding No Runner competent to stand trial also fails to satisfy the third condition of the collateral order doctrine. In sum, No Runner appeals from a non-final order. The collateral order doctrine does not apply. We therefore lack jurisdiction. DISMISSED. . The governing statute states: At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, ... the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. 18 U.S.C. § 4241(a). . Although we have not previously had occasion to consider the effect of memory loss on incompetency, other circuits have done so. These courts have uniformly" }, { "docid": "19278292", "title": "", "text": "sorry, Judge, for what I did. I bought those 25 kilos of cocaine. He says that, I will give him the two points. If he doesn’t say that, I won’t.... MR. NOGUERAS: I will ask my client that right now. THE COURT: He will have to explain to me why he is sorry. MR. NOGUERAS: To be on the record I want, I don’t even know if he understands. MR. NOGUERAS: Well, let the record show, your Honor, that I made four different questions to defendant. One, what was going on; number two, did he buy cocaine; number three, does he know that he might get two points reduced in his sentencing. He says, no, I don’t remember what [sic], THE COURT: Okay. So, he has no two points.... (A. 232). The continuance would have clearly been useful to enable Soldevila to present expert testimony that might respond to doctor Duncan’s new allegations of malingering. See United States v. Barrett, 703 F.2d 1076, 1081 (9th Cir.1983) (“defendant ‘probably could have obtained an expert to assist him [if he had] been given more time.... In failing to grant the requested continuance ... the trial court clearly abused its discretion.’ (citation omitted)”) (quoted in Flynt, 766 F.2d at 1360). The continuance would also have helped counsel prepare an explanation for Soldevila’s responses at sentencing. 3. Inconvenience Undeniably, the prospect of a continuance implied some inconvenience to the district court and to doctor Duncan. Doctor Duncan was not a local witness. The postponement of the competency hearing from May 24 to May 25 had already required doctor Duncan to remain in Puerto Rico an additional day. “Nonetheless, the district court could have held the continuance [Soldevila] sought to one or two days. Indeed, the district court could have taken an active role in making sure the evaluation took place and quickly. Balanced against ... [Soldevila’s need for] a psychiatric evaluation, the inconvenience did not justify the denial.” Pope, 841 F.2d at 957. 4. Prejudice In the present case, Soldevila was unable, without the continuance, to present witnesses of his own choosing that might" }, { "docid": "8362518", "title": "", "text": "an interview, Gonzalez denied any history of mental illness, said that his suicide attempt was a result of his “situation,” and was “out of character” for him. He also denied any subsequent suicidal impulses, noting that while he was emotionally upset about his conviction and worried about his family, he was not depressed and would not harm himself. In denying the new trial motion, the district court reiterated its pre-trial decision, further supporting the decision with the observation that Gonzalez had communicated with his counsel during the trial. A defendant’s due process right to a fair trial includes the right not to be tried, convicted or sentenced while incompetent. Drope v. Missouri, 420 U.S. 162, 172-73, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Pursuant to 18 U.S.C. § 4241(a), the district court must have a hearing “if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature of the proceedings against him or to assist properly in his defense.” See also Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). We review the district court’s decision not to hold a full competency hearing for abuse of discretion. We will affirm so long as there was a sufficient evidentiary basis to support the decision. United States v. Bruck, 152 F.3d 40, 46 (1st Cir.1998). Gonzalez points to Soldevila-Lopez, in which we reversed the district court’s decision to deny a continuance and psychological evaluation of a defendant awaiting sentencing. 17 F.3d at 490. In that case, however, the district court had already granted the defendant’s motion for a hearing and evaluation but then denied a subsequent request for further examination to respond to a court appointed psychologist’s eleventh-hour addendum that the defendant was malingering. Id. at 482. We found error in the denial of the request for follow-up in light of the new information from the psychologist. Id. at 489. In addition, not only was the trail of events in Soldevila-Lopez decidedly dissimilar" }, { "docid": "19278295", "title": "", "text": "the proceedings against him or to assist properly in his defense. United States v. Pryor, 960 F.2d 1, 2 (1st Cir.1992). In order to find a defendant competent to stand trial “it is not enough for the district court judge to find that the defendant is oriented to time and place and has some recollection of events.” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (internal quotations omitted). Instead, the “test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” Id. (internal quotations omitted). Soldevila’s responses to Attorney Noguer-as’ questions and Soldevila’s failure to make an allocution at sentencing suggested that Soldevila may not have had the constitutionally required “rational as well as factual understanding of the proceedings.” Although doctor Duncan’s report suggested that Soldé- vila was merely malingering, Soldevila was clearly prejudiced by his inability to present witnesses that could respond to doctor Duncan’s report. 5. Conclusion “We recognize that [Soldevila] might have exercised greater diligence than he did [and] [w]e do not intend to suggest that the degree of diligence demonstrated by [Soldevila] would necessarily be adequate under other circumstances.”. Flynt, 756 F.2d at 1360. However, because Soldevila has a constitutional right not to be sentenced while incompetent and suffered prejudice as a result of the denial of his motion for a continuance and because a “continuance could have been brief enough to cause only minimal inconvenience, and would have been useful,” we conclude that the court’s denial of Soldevila’s motion for a continuance was arbitrary and unreasonable. See Pope, 841 F.2d at 958. We therefore find that the district court abused its discretion in denying Soldevila’s motion and finding Soldevila competent to be sentenced. We vacate Soldevila’s sentence and remand this case for a full competency hearing and resentencing, if Soldevila is found competent to be sentenced. Vacated and remanded. . Appellate counsel obtained Soldevila's medical history from Soldevila's daughter, Blanca. Much of the history" }, { "docid": "19278290", "title": "", "text": "in responding to the allegations that Soldevila was malingering as soon as possible. By no means do we endorse Attorney No-gueras’ behavior in waiting until the last minute to try to obtain his own experts, followed by what could be perceived as a strategy to buy more time by first asking the court for a recess in order for doctor Duncan to reevaluate Soldevila and then filing a motion for a continuance in order to have time to respond to any findings doctor Duncan might make. Following doctor Duncan’s new and unexpected conclusion that Soldevila was malingering, however, Soldevila was entitled to an opportunity to prepare a response to that finding. “[AJppellant was entitled to call psychiatric witnesses of his own choosing who, after examining appellant, could testify as to his mental state.” United States v. Flynt, 756 F.2d at 1359. 2. Utility of the Continuance Where a continuance is sought in order to provide time for a psychiatric evaluation, a defendant cannot be expected to present to the court, in advance, the substance of the witness’s testimony in order to establish its utility. Pope, 841 F.2d at 954. The relevance of additional expert testimony, however, should have been apparent from Soldevila’s behavior and Attorney Nogueras’ comments at both the competency hearing and final sentencing on May 24 and May 25. See id. At the May 24 hearing, Attorney Nogueras informed the court that on May 23, he and Attorney Furst went to see Soldevila at the MDC and that during this visit, Attorney Nogueras was unable “to get through to [Sol-devila] at all.” Attorney Nogueras found himself completely incapacitated to convey to Soldevila the meaning of the upcoming competency hearing, and Soldevila did not recognize Attorney Furst, who had been his attorney for a long time. On May 25, before the district court judge imposed the final sentence, Attorney Nogu-eras informed the court that he had just asked Soldevila if he knew what was going on and Soldevila said no. At sentencing the following exchange took place: THE COURT: ... If he admits guilt today, he says I am" }, { "docid": "2499869", "title": "", "text": "or judgment, may do well to impanel a jury to inquire ... whether it be real or counterfeit”). Rules for raising the issue of a defendant’s competence in modern federal criminal cases, and the basic procedures for trial-related competency hearings are codified in Section 4241 of title 18 of the United States Code. See United States v. Renfroe, 825 F.2d 763, 766 (3rd Cir.1987)(discussing Congress’s decision to codify the standards of Dusky); see also 1 Charles Alan Wright, Federal Practice and Procedure § 196, at 719 (1982)(enactment of the original competency statute in 18 U.S.C. § 4244 and challenges to its constitutionality). The law provides: At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. 18 U.S.C. § 4241(a). See also Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Prior to the hearing the court may order that an expert examine the defendant and submit a report outlining his findings. See 18 U.S.C. § 4241(b). At the competence hearing, a preponderance of the evidence standard governs; it is the defendant who bears the burden of persuasion. See 18 U.S.C. § 4241(d); see also Cooper v. Oklahoma, 517 U.S. 348, —, 116 S.Ct. 1373, 1380, 134 L.Ed.2d 498 (1996)(“Congress has directed that the accused in a federal prosecution must prove incompetence by a preponderance of the evidence”). Hearings on the issue of competence can involve testimony from lay witnesses as well as from medical or mental health experts. See United States v. Tesfa, 404 F.Supp. 1259, 1264-67 (E.D.Pa.1975)," }, { "docid": "19278288", "title": "", "text": "of counsel and to the testimony of witnesses on his behalf. United States v. Waldman, 579 F.2d 649 (1st Cir.1978) (citations omitted). “Only ‘unreasonable and arbitrary insistence upon -expeditiousness in the face of justifiable request for delay’ constitutes an abuse of discretion.” Rodríguez Cortés, 949 F.2d at 545 (quoting United States v. Torres, 793 F.2d 436, 440 (1st Cir.), cert. denied, 479 U.S. 889, 107 S.Ct. 287, 93 L.Ed.2d 262 (1986)). In reviewing the district court’s refusal to grant a continuance for further psychiatric evaluations we consider: (1) the extent of Soldevila’s diligence in preparing his defense prior to the date set for hearing; (2) the likely utility of the continuance if granted; (3) the inconvenience to the court and the opposing party, including witnesses; and (4) the extent to which the moving party may have suffered prejudice from the denial. United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir.1985), amended, 764 F.2d 675 (9th Cir.1985); United States v. Pope, 841 F.2d 954, 956 (9th Cir.1988). 1. Diligence It is clear that Attorney Nogueras could have exercised greater diligence locating additional psychiatrists to examine his client prior to the competency hearing. As pointed out by appellate counsel for Soldevila, after Attorney Nogueras raised the issue of Solde-vila’s competence to be sentenced, “defense counsel did nothing to support his previous suggestion that defendant may have been incompetent ... from November 30, 1992 to May 19, 1993, trial counsel did nothing, waiting virtually until the eve of the next proceedings to take any action. Thus, defense counsel never retained a psychiatrist to examine defendant, nor did he take any other action calculated to flesh out facts supporting the defense position.” At no time prior to May 25, the final day of the competency hearing, did anyone contend that Soldevila was malingering. Attorney Nogueras was not given doctor Duncan’s final report, concluding that Soldevila was malingering, until after 4:00 p.m. on May 25, only moments before the final hearing. In light of this surprise, attorney Nogueras was unable to prepare any response to doctor Duncan’s allegedly surprising conclusion. Attorney Nogueras was diligent" }, { "docid": "7800030", "title": "", "text": "also id. at 468 n. 10, 98 S.Ct. at 2458 n. 10 (citing Cohen, 337 U.S. at 546, 69 S.Ct. at 1225). The district court in this case ordered commitment for two purposes: to evaluate the defendant’s competency to stand trial, and to determine her sanity at the time of the offense. We examine the appealability, of the order separately for each of these purposes. A. Commitment For Purposes of Section 4241 (Evaluating Competency to Stand Trial) The order that the court issued is often referred to as a “first Step” or “step-one” order in section 4241 cases, because it represents the first of a three-step system for determining the competency of a defendant to stand trial. See United States v. Barth, 28 F.3d 253, 255 (2d Cir.1994); United States v. Weissberger, 951 F.2d 392, 395-96 (D.C.Cir.1991) (describing the three-step process). The government cannot prosecute a defendant who is mentally “incompetent”— that is, “unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(a). In order to understand the question at issue in this case, it is necessary to understand the three-step system for determining competency. At the first step, the court must decide whether there is “reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent....” Id. Whenever a court, has reasonable cause to question the defendant’s competency, it may order a psychiatric or psychological examination of the defendant. See id. § 4241(b); Weissberger, 951 F.2d at 395. The district court, also has the discretion to confine a defendant during the examination period. See 18 U.S.C. § 4247(b). The statute states that “[f]or the purposes of an examination pursuant to an order under section 4241, ... the court may commit the person to be examined for a reasonable period, but not to exceed thirty days.” Id. (emphasis added). The director of the facility may obtain an extension lasting no longer than fifteen days upon a showing of good cause. Id. At step two, the court conducts" }, { "docid": "8362517", "title": "", "text": "had not acted in any sort of delusional way. Finally, the judge spoke directly to Gonzalez, who said that he understood the roles of the judge, jury and attorneys. The court denied both the motion to continue and the request for a competency examination and hearing. She found “absolutely no indication ... that this Defendant has in the past exhibited any symptoms of mental disease or defect.” She added that she found no “indication that [Gonzalez] is now mentally incompetent, that is, unable to understand the nature and consequences of the proceedings ... or to assist properly in his defense.” The judge also noted the stress Gonzalez was under due to the charges against him, and concluded that his apparent suicide attempt alone, without any other indicia of a mental disease or defect, was insufficient to warrant a competency evaluation. The court re-visited the competency issue after the jury’s verdict, in connection with Gonzalez’s motion for new trial. At that time, the court considered information in the Presentence Report prepared by the Probation Department. In an interview, Gonzalez denied any history of mental illness, said that his suicide attempt was a result of his “situation,” and was “out of character” for him. He also denied any subsequent suicidal impulses, noting that while he was emotionally upset about his conviction and worried about his family, he was not depressed and would not harm himself. In denying the new trial motion, the district court reiterated its pre-trial decision, further supporting the decision with the observation that Gonzalez had communicated with his counsel during the trial. A defendant’s due process right to a fair trial includes the right not to be tried, convicted or sentenced while incompetent. Drope v. Missouri, 420 U.S. 162, 172-73, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Pursuant to 18 U.S.C. § 4241(a), the district court must have a hearing “if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature of the proceedings against" } ]

[ { "docid": "9865249", "title": "", "text": "of the habeas petition, the district court denied Moore a COA. He now seeks one from this court. II. Under 28 U.S.C. § 2253(c)(1)(A), Moore must first obtain a COA before he may receive full appellate review of the denial of habeas relief. A COA can issue only if Moore makes “a substantial showing of the denial of a constitutional right, a demonstration that ... includes showing that reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (internal quotation marks and citation omitted). Uncertainty about the propriety of grant ing a COA is resolved in Moore’s favor, and the severity of his prescribed penalty colors our consideration of whether he has met his “substantial showing” burden. Hill, 210 F.3d at 484. In assessing whether [a petitioner] is entitled to a COA, we must keep in mind the deference scheme laid out in 28 U.S.C. § 2254(d). See Trevino v. Johnson, 168 F.3d 173, 181 (5th Cir.), cert. denied, 527 U.S. 1056, 120 S.Ct. 22, 144 L.Ed.2d 825 (1999). Under that scheme, we review pure questions of law and mixed questions of law and fact under § 2254(d)(1), and review questions of fact under § 2254(d)(2), provided that the state court adjudicated the claim on the merits. See 28 U.S.C. § 2254(d)....[ ] As a result, we must defer to the state court unless its decision “was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A decision is contrary to clearly established Federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000)." } ]

[ { "docid": "7870290", "title": "", "text": "1029, 1039, 154 L.Ed.2d 931 (2003) (noting that a COA is “a jurisdictional prerequisite” to consideration of an appeal by a prisoner denied habeas relief in the district court). To make the requisite substantial showing, “a petitioner must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.’ ’” ” Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983))). The Supreme Court has held that “[wjhere a district court has rejected [a petitioner’s] constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, “[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; cf. Miller-El, 123 S.Ct. at 1046 (Scalia, J., concurring) (noting that “a habeas petitioner seeking to appeal a district court’s denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling”). The Supreme Court has stated that “[t]his construction [of the standard applicable when the district court rejects a claim on procedural grounds] gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the ‘substantial" }, { "docid": "84029", "title": "", "text": "U.S. 274, 282, 124 S.Ct. 2562, 2569, 159 L.Ed.2d 384 (2004); Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569; Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604; Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4. This Court is authorized to address the propriety of granting a CoA sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000). The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner’s constitutional claim on the merits, the petitioner must demonstrate reasonable jurists could find the court’s assessment of the constitutional claim to be debatable or wrong. “[WJhere a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123 S.Ct. at 1040 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604). Accord Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569. In a case in which the petitioner wishes to challenge on appeal this Court’s dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of" }, { "docid": "18025547", "title": "", "text": "this standard if “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The issue is “the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336,123 S.Ct. 1029. In cases involving the death penalty, “any doubts as to whether a COA should issue must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted). We evaluate the debatability of Trottie’s constitutional claims under AED-PA’s highly deferential standard, which “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (citations and internal quotation marks omitted). Under AEDPA, a federal court may not grant habeas relief unless the petitioner has first exhausted state remedies with respect to the claim at issue. 28 U.S.C. § 2254(b). To prevail, a habeas petitioner must prove that the constitutional adjudication by the state court “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2). Clearly established federal law is comprised of “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state-court decision is contrary to clearly established federal law when it “arrives at a conclusion opposite to that reached by [the Supreme Court]" }, { "docid": "1460755", "title": "", "text": "alone. Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir.1997); 28 U.S.C. § 2253(c)(3). A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 2569, 159 L.Ed.2d 384 (2004); Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make such a showing, the petitioner need not show he will prevail on the merits but rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 124 S.Ct. at 2569; Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604; Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4. This Court is authorized to address the propriety of granting a CoA sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000). The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner’s constitutional claim on the merits, the petitioner must demonstrate that reasonable jurists could find the court’s assessment of the constitutional claim to be debatable or wrong. “[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123" }, { "docid": "13985815", "title": "", "text": "and the Texas Court of Criminal Appeals so ordered. The federal district court denied Leal’s petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 and sua sponte denied a COA. II To obtain a COA, Leal must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, he “must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. While the nature of a capital case is not of itself sufficient to warrant the issuance of a COA, in a death penalty case “any doubts as to whether a COA should issue must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citing Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000)). In determining whether a COA should be granted, we remain cognizant of the standard of review imposed upon the district court by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). A district court may grant habeas relief only if it determines that the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or “in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1), (2). The state court’s findings of fact are entitled to a presumption of correctness and the petitioner may overcome that presumption only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Ill Leal" }, { "docid": "16435187", "title": "", "text": "post-AEDPA law governs the right to appeal. Id. Kunkle filed a notice of appeal in the instant case on November 1, 2002. Therefore, the AEDPA amended version of 28 U.S.C. § 2253 controls Kunkle’s right to appeal. Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first obtain a COA from a circuit judge. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Until a COA has been issued, a federal appeals court lacks jurisdiction to rule on the merits of a habeas appeal. Miller-El, 123 S.Ct. at 1039. To obtain a COA, the petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. 2253(c)(2). To make such a showing, the petitioner must demonstrate “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack, 529 U.S. at 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). The question of whether a COA should issue is a threshold inquiry that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El, 123 S.Ct. at 1039. A full consideration of the merits is not required, nor permitted, by § 2253(c). Id. The fact that a COA should issue does not mean that the petitioner will be entitled to habe-as relief because the “question is the de-batability of the underlying constitutional claim, not the resolution of that debate.” Id. at 1042. Under pre-AEDPA standards of review, this court will review the legal conclusions of the district court de novo and the state court’s findings of fact for clear error. See Soffar v. Cockrell, 300 F.3d 588, 592 (5th Cir.2002) (en banc). This court must accord a presumption of correctness to all findings of fact if they are supported by the record. Id.; see 28 U.S.C. § 2254(d)" }, { "docid": "11683531", "title": "", "text": "resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). In determining whether to grant a COA, our inquiry is limited to a threshold examination that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A full consideration of the merits is not required, nor permitted, by § 2253(c)(2). Id. The fact that a COA should issue does not mean the petitioner will be entitled to ultimate relief, rather “the question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. Accordingly, we must be mindful that “a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 337, 123 S.Ct. 1029. At the COA stage, we do not apply the deferential AEDPA standard of review to examine the merits of the habeas petition. Id. at 342, 123 S.Ct. 1029 (“Before the issuance of a COA, the Court of Appeals had no jurisdiction to resolve the merits of petitioner’s constitutional claims.”). Our immediate task is to determine, not the ultimate merits of Smith’s claims, but only whether Smith has demonstrated that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). “Because the present case involves the death penalty, any doubts as to whether a COA should [be] issue[d] must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). Discussion Smith seeks a" }, { "docid": "1843114", "title": "", "text": "1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Ten- nard v. Dretke, 542 U.S. at -, 124 S.Ct. at 2569; Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604; Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4. This Court is authorized to address the propriety of granting a CoA sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000). The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner’s constitutional claim on the merits, the petitioner must demonstrate reasonable jurists could find the court’s assessment of the constitutional claim to be debatable or wrong. “[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123 S.Ct. at 1040 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604). Accord, Tennard v. Dretke, 542 U.S. at -, 124 S.Ct. at 2569. In a case in which the petitioner wishes to challenge on appeal this Court’s dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling." }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "14010033", "title": "", "text": "denied. II To receive a COA, Cardenas must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In capital cases, doubts about whether the petitioner has met the standard must be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). When a petition is dismissed on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). At the COA stage, a court should “limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider “the factual or legal bases adduced in support of the claims,” and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 120 S.Ct. 1595. The district court should evaluate the habeas petition to see if the state court’s determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it “resulted in a decision that was based on an unreasonable determination of the facts in light" }, { "docid": "1569923", "title": "", "text": "(2003) (citing 28 U.S.C. § 2253(c)(1)). “The COA statute requires a threshold inquiry into whether the circuit court may entertain an appeal.” Id. (citing Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Hohn v. United States, 524 U.S. 236, 248, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998)). A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a petitioner “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983) (citation and internal quotation marks omitted). Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997). The analysis “requires an overview of the claims in the habeas petition and a general assessment of their merit.” Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931. We must look to the district court’s application of AEDPA to the petitioner’s constitutional claims and determine whether the court’s resolution was debatable among reasonable jurists. Id. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. Rather, “ ‘[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’ ” Id. at 1040. (citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542). In making this assessment, we must be mindful of the deferential standard of review the district court applied to Miniel’s claims as required by AEDPA. Hill v. Johnson, 210 F.3d 481, 484-85 (5th Cir.2000). Section 2254(d) requires a federal district court to give deference to determinations by a state habeas" }, { "docid": "13109965", "title": "", "text": "Bagwell appealed the denial of the COA on two of his habeas claims to this court. II. STANDARD OF REVIEW Bagwell’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). AEDPA requires Bagwell obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000). Hence, “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA will issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. More specifically, the petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Likewise, when the district court has rejected a claim on a procedural ground, “the petitioner must also demonstrate that ‘jurists of reason would find it debatable whether the district court was correct in the procedural ruling.’ ” Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir.2003) (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). The Supreme Court counseled that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim[.]” Id. at 331, 123 S.Ct. 1029. Instead, this court should engage in an “overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Ultimately, “[t]o prevail on a petition for writ of habeas corpus, a petitioner must demonstrate that the state" }, { "docid": "11683530", "title": "", "text": "This case arises on appeal from the United States District Court for the Southern District of Texas, Houston Division, Judge Ewing Werlein, Jr. presiding. The State moved for summary judgment. On March 31, 2003, the district court granted the State’s motion for summary judgment denying Smith relief without an evidentiary hearing and dismissed the writ petition in an unpublished decision. Smith v. Cockrell, No. H-00-1771 (S.D.Tex. filed March 31, 2003). The district court also denied Smith’s COA request sua sponte. On September 22, 2003, Smith timely filed his appeal, requesting a COA from this court. Standard of review Because Smith’s federal petition for habeas review was filed on May 30, 2000, we review it under the standards articulated in the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254. To obtain a COA, the petitioner must make a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, the petitioner must demonstrate “that reasonable jurists could debate whether [] the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). In determining whether to grant a COA, our inquiry is limited to a threshold examination that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A full consideration of the merits is not required, nor permitted, by § 2253(c)(2). Id. The fact that a COA should issue does not mean the petitioner will be entitled to ultimate relief, rather “the question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. Accordingly, we must be mindful that “a claim can be debatable even though every jurist of reason might agree, after the COA" }, { "docid": "7585282", "title": "", "text": "of appeals ....’” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I) (quoting 28 U.S.C. § 2253(c)(1)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this requirement includes a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Id. at 484,120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). As the Supreme Court explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals side steps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction. Miller-El I, 537 U.S. at 336-37, 123 S.Ct. 1029. In sum, Petitioner need not show that his habeas petition will ultimately prevail on the merits in order for this court to issue a COA. Id. at 337, 123 S.Ct. 1029. In fact, the Supreme Court has specifically instructed that a court of appeals should not deny a COA simply because the petitioner has not demonstrated an entitlement to relief. Id. Instead, “ ‘where a district court has rejected the constitutional claims on the merits, the showing required to" }, { "docid": "21706392", "title": "", "text": "appellate review of denial of a habeas petition limited to the issues on which CoA has been granted). In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to those issues on which CoA is granted alone. Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir.1997); 28 U.S.C. § 2253(c) (3). A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004); Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. 1029; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. 2562; Miller-El v. Cockrell, 537 U.S. at 336; 123 S.Ct. 1029 Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. 1595; Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. This Court is authorized to address the propriety of granting a CoA sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000). The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner’s constitutional claim on the merits, the petitioner must demonstrate reasonable jurists could find the court’s assessment of the constitutional claim to be debatable or wrong. “[W]here a district court has rejected the constitutional claims on the merits," }, { "docid": "13172690", "title": "", "text": "Cir.1997); 28 U.S.C. § 2253(c)(3). A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 2569, 159 L.Ed.2d 384 (2004); Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569; Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604; Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4. This Court is authorized to address the propriety of granting a CoA sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000). The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the district court has disposed of a claim. If this Court rejects a prisoner’s constitutional claim on the merits, the petitioner must demonstrate reasonable jurists could find the court’s assessment of the constitutional claim to be debatable or wrong. “[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123 S.Ct. at 1040 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604); accord Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569. In a case in which the petitioner wishes to challenge" }, { "docid": "11755737", "title": "", "text": "appeal.” Id. (citing Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Hohn v. United States, 524 U.S. 236, 248, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998)). A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a petitioner “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (citation and internal quotation marks omitted). Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997). The analysis “requires an overview of the claims in the habeas petition and a general assessment of their merit.” Miller-El, 123 S.Ct. at 1039. The court must look to the district court’s application of AEDPA to the petitioner’s constitutional claims and determine whether the court’s resolution was debatable among reasonable jurists. Id. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. Rather, “ ‘[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’ ” Id. at 1040. (citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542). IV. Newton raises two issues in this Application for Certificate of Appealability (COA): (1) the trial court denied petitioner her 6th Amendment right to be represented by counsel of her choice when it denied her motion for continuance so Newton could substitute retained counsel; and (2) the Texas special issues did not permit the jury to consider and give effect to Newton’s mitigating evidence of youth, good character, cooperation with police, unfaithful/drug dealing spouse, and impoverished background. A. Newton claims first" }, { "docid": "13172689", "title": "", "text": "537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003); 28 U.S.C. § 2253(c)(2). Likewise, under the AEDPA, appellate review of a habeas petition is limited to the issues on which a CoA is granted. See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir.2002) (holding a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir.2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir.1997) (holding the scope of appellate review of denial of a habeas petition limited to the issues on which CoA has been granted). In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to those issues on which CoA is granted. Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir.1997); 28 U.S.C. § 2253(c)(3). A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 2569, 159 L.Ed.2d 384 (2004); Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569; Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604; Barefoot v. Estelle, 463 U.S. at" }, { "docid": "7870289", "title": "", "text": "(Michie 2000) (vesting exclusive jurisdiction in the Supreme Court of Virginia of petitions for writs of habeas corpus by petitioners held under a sentence of death), and was denied relief. Thereafter, he filed a petition pursuant to 28 U.S.C.A. § 2254 in the United States District Court for the Western District of Virginia. On March 28, 2002, the district court denied relief on that petition. Swisher seeks a COA as to numerous claims raised in the district court. We address the following three claims below: (1) that the Commonwealth knowingly elicited perjurious testimony; (2) that Swisher received ineffective assistance of counsel; and (3) that the Commonwealth failed to turn over Brady material. II. We may only issue a COA if Swisher has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West Supp.2002). Absent a COA, “an appeal may not be taken” to this court from the district court’s denial of relief on the § 2254 petition. Id. § 2253(c)(1); cf. Miller-El v. Cockrell, - U.S. -, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (noting that a COA is “a jurisdictional prerequisite” to consideration of an appeal by a prisoner denied habeas relief in the district court). To make the requisite substantial showing, “a petitioner must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.’ ’” ” Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983))). The Supreme Court has held that “[wjhere a district court has rejected [a petitioner’s] constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, “[w]hen the district court denies a habeas petition on procedural" }, { "docid": "7963401", "title": "", "text": "2253(c)(2). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals....'\" Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (quoting 28 U.S.C. § 2253(c)(1)). “The COA statute ... requires a threshold inquiry into whether the circuit court may entertain an appeal.” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); citing Hohn v. United States, 524 U.S. 236, 248, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998)). A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a petitioner “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (citation and internal quotation marks omitted). Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997). The analysis “requires an overview of the claims in the habeas petition and a general assessment of their merit.” Miller-El, 123 S.Ct. at 1039. The court must look to the district court’s application of AEDPA to the petitioner’s constitutional claims and determine whether the court’s resolution was debatable among reasonable jurists. Id. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. Rather, “ ‘[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’ ” Id. at 1040. (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). IV. Graves claims first that he is actually innocent of the crime and that the imposition" } ]

[ { "docid": "8603821", "title": "", "text": "participation in an illegal wildcat strike. The union filed grievances on behalf of each employee but to no avail. After the union declined to take the grievances to arbitration, the discharges were declared final on September 30, 1980. Some fifteen months later, all but Wolfe filed a complaint alleging breach of the collective bargaining agreement by their employer and unfair representation by their union. On September 30, 1982, Wolfe was allowed to intervene. On October 8, 1982, the district judge, in light of Badon, dismissed their complaint as untimely filed. Dennis McConnell, appellant in No. 83-3414, was an employee at Rainbo Baking Company’s plant in Franklin, Ohio. On July 23, 1982, McConnell was fired for failing to report to work as scheduled and for failing to call in to explain his absence. Later that day, McConnell asked his Teamsters local to intervene in his behalf. The union told him they could do nothing for him. On January 19, 1983, almost six months later, McConnell filed this proceeding in the district court against both his union and his employer. On May 6, 1983, his complaint was dismissed because it was barred by Ohio’s three-month statute of limitations for actions to vacate arbitration awards. II. In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court, in an effort to untangle a very confused area of the law, elected to dispense with its normal practice of borrowing analogous state statutes of limitations for federal statutes lacking their own and adopted a uniform, six-month statute of limitations for hybrid section 301/unfair representation claims. The issue raised in each of these three cases is whether the holding of DelCostello should be applied to cases already filed but not finally decided before the decision in DelCostello. Opinion on this issue in the other circuits is fairly uniform. The First, Second, Third, Fourth, Fifth, Seventh, Eighth and Eleventh Circuits have all held that DelCostello should be given retroactive effect. See Graves v. Smith’s Transfer Corp., 736 F.2d 819 (1st Cir.1984); Welyczko v. U.S. Air, Inc., 733 F.2d" } ]

[ { "docid": "370943", "title": "", "text": "to the amount specified in the agreement. She further alleged that Kroger required her to perform additional duties in violation of safety rules and established company procedures. Finally, she maintained that the Unions’ failure to defend her from Kroger’s intolerable and discriminatory acts left her with no alternative but to resign her position. Following receipt of the complaint, Kroger and the Unions removed the action to federal district court. The defendants then moved to dismiss Cannon’s complaint on the ground that it was neither filed nor served within the six-month statute of limitations derived from § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). The district court granted the motion for dismissal with prejudice pursuant to Fed.R. Civ.P. 12(b)(6), reasoning that Cannon’s failure to file a complaint within six months of her resignation rendered her action untimely. The court further held that the statutory period could not be extended by the alternative means of commencing an action available under North Carolina law. This appeal followed. II. The cause of action asserted by Cannon is popularly known as a “hybrid” § 301/fair representation claim. The gravamen of such an action is the assertion that an employer has breached its contractual obligations toward an employee under the collective bargaining agreement in violation of § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 and that the employee’s union, by failing to protect its member’s rights, has failed to satisfy the duty of fair representation implied by the National Labor Relations Act, 29 U.S.C. § 151 et seq. Clearly, both components of this “hybrid” cause of action involve rights created by federal statute. On appeal, Cannon contends that her action below did not violate the six-month statute of limitations applied by the Supreme Court to “hybrid” § 301/fair representation claims in DelCostello v. International Bro. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). She argues that DelCostello required only that a “hybrid” action be commenced within six months of the alleged wrongful act but did not specify commencement in accordance with the Federal Rules" }, { "docid": "21585385", "title": "", "text": "the basis that the claims were barred by the statute of limitations. In urging summary judgment, the Union argued that the asserted claims were hybrid section 301/fair representation claims. That is, the claims were based in part on a breach of the collective-bargaining agreement between the Union and the employer, actionable under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and in part on a breach of the Union’s duty of fair representation which is a duty implied by the overall scheme of the National Labor Relations Act (NLRA). DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164, 103 S.Ct. 2281, 2291, 76 L.Ed.2d 476 (1983). The statute of limitations applicable to hybrid section 301/fair representation claims is borrowed from section 10(b) of the NLRA, 29 U.S.C. § 160(b), which provides six months in which to challenge unfair labor practices. DelCostello, supra. Accordingly, if the claims are properly characterized as hybrid section 301/fair representation claims, they are barred by the six-month limitations period. Quite similar claims were held in International Brotherhood of Electrical Workers v. Hechler, 481 U.S. 851, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987) (Hechler II), to lie under section 301 and to preempt state tort law. On the remand, Hechler v. International Brotherhood of Electrical Workers, 834 F.2d 942 (11th Cir.1987) {Hechler III), they were held subject not to the six-month period, but to the Florida state six-year period for contract actions. In the present case, the appellants opposed summary judgment, arguing that their claims were not hybrid section 301/fair representation claims subject to the six-month limitations period. They point to the language of the collective-bargaining agreement, which provides, inter alia, that “[a]ll safety appliances shall be constructed in a safe and proper manner by competent mechanics and helpers,” and they further allege that the Union had a duty to “ensure that Plaintiffs workplace was safe.” Sams’ Complaint at If 21; Orr’s Complaint at 1121. Sams and Orr claim that the Union assumed and breached these duties, and that they are entitled to recover in tort as third-party beneficiaries of the duties." }, { "docid": "6717956", "title": "", "text": "the award is time-barred by the provisions of the United States Arbitration Act of 1925, 9 U.S.C. § 12. Therefore, plaintiff’s motion to vacate the award is denied, and this case is dismissed. DISCUSSION In DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court ruled that the six month limitations period of § 10(b) of the National Labor Relations Act is applicable to the employee’s breach of duty of fair representation claim against his union and breach of collective bargaining agreement claim against his employer. The Court adopted § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), because § 301 of the Labor Management Relations Act does not contain a limitations period. Prior to DelCostello, the courts looked to “the nature of the cause of action” and applied the most analogous state statute of limitations to claims brought under § 301. See Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) (suit by union against company for breach of collective bargaining agreement). Although DelCostello establishes a statute of limitations period for hybrid claims under § 301, it does not address actions arising solely under § 301 or, more specifically, suits to vacate arbitration awards brought directly under § 301. See DelCostello, 452 U.S. at 158-59, 103 S.Ct. at 2287, fn. 12. Every court of appeals which has considered this issue in the arbitration context has concluded the holding of DelCostello does not apply to such suits. Federation v. Westinghouse Electric Corp., 736 F.2d 896 (3rd Cir.1984) (suit to compel arbitration, applying the six month period of § 10(b) by analogy); United Brotherhood of Carpenters and Joiners v. FMC Corp., 724 F.2d 815 (9th Cir.1984) (suit to vacate arbitration, applying 20 day state statute); International Union of Electrical, Radio and Machine Workers v. Ingram Mfg. Co., 715 F.2d 886 (5th Cir.1983) en banc denied 710 F.2d 677 (suit to enforce arbitration, applying four year state “catch — all” statute); Derwin v. General Dynamics Corp., 719 F.2d 484 (1st Cir.1983) (suit to confirm arbitration, applying" }, { "docid": "5554083", "title": "", "text": "followed. II.ISSUES (1) Whether the district court erred by finding that Coppage’s complaint was timely- (2) Whether the district court erred by finding that the Postal Service failed to comply with the arbitration award, and consequently, violated its collective bargaining agreement with the Union. (3) Whether the district court erred by finding that the Union breached its duty of fair representation to Coppage. III.STANDARD OF REVIEW This court reviews a district court’s grant of summary judgment de novo, viewing the evidence in the light most favorable to the party opposing the motion. Transamerica Leasing, Inc. v. Institute of London Underwriters, 267 F.3d 1303, 1307 (11th Cir.2001). IV.DISCUSSION Coppage’s complaint alleges that the Postal Service breached its obligations under the employment agreement and that the Union violated its duty of fair representation. The Supreme Court of the United States describes such a lawsuit as a “hybrid § 301/ fair representation claim.” DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 165, 103 S.Ct. 2281, 2291, 76 L.Ed.2d 476 (1983). Cop-page’s claim is a hybrid claim because it “comprises two causes of action.” DelCostello, 462 U.S. at 164, 103 S.Ct. at 2290. The first cause of action involved is against the employer for breach of the collective bargaining agreement. This claim rests on section 301 of the Labor Management Relations Act. See 29 U.S.C. § 185(a) (1994). The second claim is against the union for breach of the union’s duty of fair representation. DelCostello, 462 U.S. at 164, 103 S.Ct. at 2290 (explaining that the union’s duty of fair representation is implied under the National Labor Relations Act). “Yet the two claims are inextricably interdependent.” DelCostello, 462 U.S. at 164, 103 S.Ct. at 2291 (quoting United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 66-67, 101 S.Ct. 1559, 1565-1566, 67 L.Ed.2d 732 (1981)). In DelCostello, the Supreme Court adopted the six-month statute of limitations found in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), for all such hybrid cases. DelCostello, 462 U.S. at 169-171, 103 S.Ct. at 2293-2294. Thus, Coppage had six months to file her hybrid suit" }, { "docid": "3912971", "title": "", "text": "F.3d 212, 216 (6th Cir.1994) (citations omitted). Under this approach, preemption is required when resolving the plaintiffs claim will not involve direct interpretation of a precise term of the collective bargaining agreement, but will require a court to address relationships created through the collective bargaining process and to mediate a dispute founded upon rights created by the collective bargaining agreement. Id. at 218 (citing Jones v. General Motors Corp., 939 F.2d 380, 382-83 (6th Cir.1991)). Workman’s claim of wrongful termination, based on an alleged breach of a collective bargaining agreement (Count I), must proceed, if at all, under § 301 of the LMRA, particularly given Workman’s accompanying claim that the union breached its duty of fair representation (Count II). In such a “hybrid § 301/fair representation” case, the claims against the employer and the union are “inextricably interdependent.” DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Thus, in order to prevail against either party, the plaintiff “must not only show that [his] discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union.” Id. at 165, 103 S.Ct. 2281. In its motion however, the union argues that it is entitled to summary judgment in its favor because Workman neglected to file his complaint within the applicable six-month statute of limitations, resulting in his § 301 claim being time-barred. This case is a hybrid § 301/un-fair representation action because Workman alleges both a breach of a collective bargaining agreement by United and a breach by the union of its duty of fair representation. As noted by a Sixth Circuit panel in Fox v. Parker Hannifin Corp., 914 F.2d 795 (6th Cir.1990), In DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court conclusively established that section 301 actions brought by individual employees are governed by the six-month statute of limitations borrowed from section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). According to the settled law in this circuit, a section" }, { "docid": "12144964", "title": "", "text": "FERGUSON, Circuit Judge: Ralphs Grocery Co. (“Ralphs”) fired plaintiff Virginia Aragon (“Aragon”) on December 1, 1981. Aragon, who was represented in her employment and in the grievance procedures stemming from her dismissal by a Local of the Teamsters (“Local”), achieved reinstatement in a less favorable position, without backpay, and on condition that she relinquish any further claims, on March 12, 1982. Discontented with this result, Aragon sued Ralphs for breach of its collective bargaining agreement in discharging her, and sued her union, the Local, for breach of its duty of fair representation in its pursuit of her grievance against Ralphs. In addition to this hybrid law suit against the union and the employer arising under the National Labor Relations Act, Aragon sued the Local’s counsel for its alleged unsatisfactory work on her behalf. It is the district court’s judgment against Aragon and in favor of these few defendants, on these few claims, that Aragon now challenges on appeal. Aragon argues that the six-month statute of limitations prescribed by section 10(b) of the National Labor Relations Act (“NLRA”), 29 U.S.C. section 160(b), which applies to hybrid suits against a union for breach of its duty of fair representation and against an employer for breach of its collective bargaining agreement, should not be applied retroactively to bar her suit against the Local. Construed liberally, Aragon’s assertion on appeal that this statute of limitations should be tolled as to Ralphs may be construed as a claim that the six-month statute of limitations referred to above should not be applied retroactively to bar her suit against her former employer, Ralphs. The resolution of these two claims depends in part on whether DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), which held that the six-month statute of limitations contained in the NLRA applies to hybrid suits of this sort, should be applied retroactively; and in part on whether prospective application of DelCostello would leave Aragon with a shorter or longer applicable state statute of limitations in DelCostello’s stead. Aragon also claims that she is entitled to damages" }, { "docid": "18580512", "title": "", "text": "GODBOLD, Chief Judge: In Part III of our opinion we held that Proudfoot’s cause of action against his employer, Crowley, accrued when Crowley dismissed Proudfoot on January 17, 1983, and, since Proudfoot’s complaint was not filed until April 16, 1984, the cause of action against Crowley was barred by the six-month period allowed in which to sue. On reconsideration we conclude this holding was incorrect. The Supreme Court in DelCostello v. International Brotherhood, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) held that the six-month statute of limitations prescribed by § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), applies to hybrid suits under § 301 alleging that the employer has breached the collective bargaining agreement and that the union has breached its duty of fair representation. The Court in DelCostello did not decide when the six-month period begins to run. But the Court acknowledged that a § 301 hybrid suit actually involves two separate actions: one against the employer under § 301 for breach of the collective bargaining agreement and one against the union for breach of its implied duty of fair representation. 462 U.S. at 164, 103 S.Ct. at 2290. Although these causes of action are distinct, they are interdependent. To prevail on his claim against the employer, the employee must prove not only that the employer breached the collective bargaining agreement but also that the union violated its duty of fair representation. Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967); DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291. To prevail against the union, in addition to proving that the union did not discharge the duty it owed him the employee must also show that the employer’s actions violated the collective bargaining agreement. Hines v. Anchor Motor Freight, 424 U.S. 554, 570-71, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976); DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291. Thus the separate causes of action accrue simultaneously. The general rule is that § 10(b)’s six-month limitation period starts running when the plaintiff was or should" }, { "docid": "9434199", "title": "", "text": "that his wrongful discharge claim is preempted by the LMRA, but argues (1) that his claim is not a “hybrid” claim, and therefore the six month statute of limitations does not apply, and (2) even if his claim is a “hybrid” claim, the complaint was timely filed. Ordinarily, an employee who brings a claim, such as plaintiff’s wrongful discharge claim, against an employer for breach of a collective bargaining agreement is first required to exhaust any grievance or arbitration remedies provided in the collective bargaining agreement. DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 163, 103 S.Ct. 2281, 2289, 76 L.Ed.2d 476 (1983). However, an employee is not required to exhaust his remedies under the grievance procedures if the union breaches its duty of fair representation in connection with the grievance process (as, for example, where the union fails to process the employee’s claim). Id. at 164, 103 S.Ct. at 2290. In such a case, the employee may bring a so-called “hybrid” action against both the employer, for breach of the collective bargaining agreement, and the union, for breach of the duty of fair representation. Id. For such a “hybrid” claim, the Supreme Court has held, the applicable statute of limitations is six months, as provided under § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). Id. at 169, 103 S.Ct. at 2293. Plaintiff argues, however, that his wrongful discharge claim is not a “hybrid” claim because he does not actually assert a claim for breach of duty of fair representation against the union. This argument is without merit. Although plaintiff does not assert a claim for breach of duty of fair representation against the union, the allegations in his complaint are precisely that the union breached its duty to plaintiff by failing to advise him of his rights under the collective bargaining agreement. See Complaint, Count I, ¶ 20. As the Supreme Court has held, the two claims in a “hybrid” action are “inextricably interdependent.” DelCostello, 462 U.S. at 164, 103 S.Ct. at 2291. Without a claim against the union, the employee’s claim against the" }, { "docid": "5718930", "title": "", "text": "1978, nearly eight months following the July 19, 1977, grievance hearing, DelCostello filed this action pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C. §§ 151, 185, in the district court sitting in Maryland. In his complaint, he alleged that Anchor had discharged him in violation of the applicable collective bargaining agreement and that the union had breached its duty of fair representation in the ensuing grievance proceedings. Defendants thereafter moved for summary judgment, claiming, inter alia, that the action was barred by Maryland’s thirty-day limitations period for vacating arbitration awards. This argument was initially heard in March, 1981, and rejected by the district judge, who concluded that the three-year state statute of limitations for contract actions was applicable. DelCostello v. International Brotherhood of Teamsters, 510 F.Supp. 716 (D.Md.1981). Following this decision, the Supreme Court held in United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), that New York’s ninety-day statute of limitations to vacate arbitration awards, instead of its six-year statute of limitations for contract actions, was the appropriate state statute of limitations for §301 actions brought against an employer. In light of Mitchell, the district court reconsidered and held that plaintiff’s action was barred by Maryland’s thirty-day statute of limitations. DelCostello v. International Brotherhood of Teamsters, 524 F.Supp. 721 (D.Md.1981). This Court affirmed that ruling, DelCostello v. International Brotherhood of Teamsters, 679 F.2d 879 (4th Cir.1982) (mem.), and DelCostello petitioned the Supreme Court for a writ of certiorari. The Court agreed to hear the case along with a companion case from the Second Circuit, United Steelworkers of America v. Flowers. In its decision in these two cases, the Supreme Court held that the applicable statute of limitations for breach of contract/duty of fair representation cases was the six-month limitations period for filing an unfair labor practice charge under § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). The Court, concluding that the six-month statute of limitations applied to claims arising" }, { "docid": "15661222", "title": "", "text": "agreement and (2) that the union breached its duty of fair representation in redressing her grievance against the employer. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 163-64, 103 S.Ct. 2281, 2289-91, 76 L.Ed.2d 476 (1983); Vaca v. Sipes, 386 U.S. 171, 184-86, 87 S.Ct. 903, 913-15, 17 L.Ed.2d 842 (1967). Section 301 of the Labor Management Relations Act, 1947 (the “LMRA”), 29 U.S.C. § 185, governs the employer’s duty to honor the collective bargaining agreement, and- the, duty of fair representation is implied under the scheme of the National Labor Relations Act (the “NLRA”). See DelCostello, 462 U.S. at 164, 103 S.Ct. at 2290-91; see also Price v. International Union, United Auto. Aerospace & Agric. Implement Workers, 795 F.2d 1128, 1134 (2d Cir.1986) (union’s duty of fair representation is implied from § 9(a) of the NLRA, 29 U.S.C. § 159(a), specifically). The limitations period on this “hybrid' § 301/ DFR” action is six months, see DelCostello, 462 U.S. at 169, 103 S.Ct. at 2293, which begins to run when the employee knew or should have known of the breach of the duty of fair representation, see Cohen v. Flushing Hosp. & Med Ctr., 68 F.3d 64, 67 (2d Cir. 1995); King v. New York Tel. Co., 785 F.2d 31, 33 (2d Cir.1986). The plaintiff may sue the union or the employer, or both, but must allege violations on the part of both. See DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291. B. The Plaintiffs’ Claims Against the Union In their third amended complaint, the plaintiffs joined Local 138 as a defendant and alleged that the union had breached its duty of fair representation in two ways: (1) by entering into the Amendment without ratification by the union membership, and (2) by refusing to pursue their claim to arbitration. 1. The Union’s Participation in the Amendment The union was joined in this action more than two years after it participated in the Amendment; thus, the plaintiffs’ claim against the union based.on that act would be time-barred by the six-month limit of Del-Costello. It is unclear whether the" }, { "docid": "211196", "title": "", "text": "Learning from Davis that the criminal charges either had been or were about to be dismissed, on March 14, 1984, Crosslin wrote Georgia Power asking that Davis and Wadley be reinstated. Georgia Power replied that the Monroe County Superior Court clerk showed the charges as still pending. The union evidently took no further steps to assist Wadley. Wadley filed the instant lawsuit on July 11, 1984, less than six months after his union took its final action. Hill filed his suit the same day. Recognizing that the six-month limitations period set out in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), governed hybrid § 301 claims, the district court held that the actions were time-barred and granted summary judgment in favor of Superior and the unions. The district court concluded that Hill’s cause of action accrued no later than July 1982 and Wadley’s cause of action accrued no later than August 1982. Under this view, a suit filed in July 1984 came some 18 months too late. II. STATUTE OF LIMITATIONS Plaintiffs brought “hybrid” suits under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, alleging that their employer discharged them in violation of the collective-bargaining agreement and that their respective unions breached their duty of fair representation. In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court decided that the six-month statute of limitations contained in § 10(b) of the National Labor Relations Act applied to hybrid § 301 suits such as this one. The Eleventh Circuit has held that DelCostello applies retroactively. Rogers v. Lockheed-Georgia Co., 720 F.2d 1247 (11th Cir.1983); see also Edwards v. Sea-Land Service, Inc., 720 F.2d 857 (5th Cir.1983). The Court in DelCostello did not address when the six-month period begins to run. However, because a hybrid § 301 claim involves separate, yet interdependent, claims against the employer and the union, this court recently concluded that the separate causes of action “accrue simultaneously” for statute of limitations purposes. Proudfoot v. Seafarer’s International Union, 779 F.2d 1558 (11th" }, { "docid": "1019356", "title": "", "text": "29 U.S.C. § 401 et seq. (LMRDA), by failing to provide them with a copy of the collective bargaining agreement. In two separate opinions, the district court found that the statute of limitations had run against appellants’ Railway Labor Act claim involving the union, Linder v. Berge, 567 F.Supp. 913 (D.R.I.1983) (Linder I), and against their claim involving Amtrak, Linder v. Berge, 577 F.Supp. 279 (D.R.I.1983) (Linder II). The court adopted the reasoning of a recent Supreme Court decision in which the Court applied a six-month statute of limitations to similar claims against union and employer brought under the National Labor Relations Act, 29 U.S.C. § 151 et seq., and under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. See DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). The district court also found that appellants lacked standing to pursue their claim under the LMRDA. We affirm. The plaintiffs in DelCostello alleged that their employers had breached § 301 of the Labor Management Relations Act by violating a collective bargaining agreement, and that their unions had breached the duty of fair representation implied under the National Labor Relations Act by failing properly to handle their grievances against the employers. Neither Act provided a limitations period applicable to these claims. The Supreme Court had in the past adopted the practice of borrowing appropriate state statutes of limitation for § 301 claims against an employer. See United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981) (adopting a state statute of limitations applicable to appeals from arbitral awards); United Auto Workers v. Hoosier Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) (adopting a state statute of limitations applicable to breach of contract actions). In DelCostello, however, the Court decided that borrowing state statutes of limitation was not appropriate in the context of hybrid § 301/unfair representation claims. It held that these claims should be subject to the six-month limitations period provided in § 10(b) of the National Labor Relations Act. DelCostello, 462" }, { "docid": "11777608", "title": "", "text": "are irrelevant to the statute of limitations issue. On the authority of DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the district court applied to this case the six-month limitations period set forth in § 10(b) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 160(b) (1982). Viewing plaintiffs’ claim as one for breach of duty by the union in negotiating the collective bargaining agreements, Judge Costantino held the complaint, filed on March 3, 1983, to be time-barred, because “plaintiffs’ cause of action arose, at the very latest, on or about the time of the ratification of the 1982 Agreement, that is, January 26, 1982”. DISCUSSION We agree with Judge Costantino that the DelCostello Court’s analysis of the limitations provision in § 10(b) of the NLRA applies equally to this case. Section 10(b) provides in relevant part that “no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the [National Labor Relations] Board and the service of a copy thereof upon the person against whom such charge is made.” 29 U.S.C. § 160(b) (1982). In Del-Costello the Supreme Court held that this provision, which when read literally relates only to filing charges with the National Labor Relations Board, should also apply to so-called “hybrid” cases in which employees sue both their employer for breach of the collective bargaining agreement pursuant to § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1982), and their union for breach of its duty of fair representation in mishandling the re? lated grievance and arbitration proceedings. See DelCostello, 462 U.S. at 154, 103 S.Ct. at 2285. While plaintiffs have not alleged here a DelCostello-type, hybrid § 301/duty of fair representation claim, they have alleged that during the negotiation and administration of the several collective bargaining agreements, the union in concert with NYRA unfairly discriminated against them, and thereby breached the union’s duty of fair representation. Due to the undeniable resemblance and substantial overlap between unfair labor practices and breaches of" }, { "docid": "13008700", "title": "", "text": "the union is implied under the National Labor Relations Act. 29 U.S.C. §§ 151 et seq. To prevail against either the employer or the union, therefore, the employee must show that the employer’s action was contrary to the collective bargaining agreement and that the union breached its duty. Such an action is typically labeled a hybrid section 301/ fair representation claim. DelCostello v. Teamsters, 462 U.S. 151, 161-65, 103 S.Ct. 2281, 2289-91, 76 L.Ed.2d 476 (1983). In the absence of an express federal statute of limitations governing these actions, the appropriate limitations period had been the subject of considerable dispute until the Supreme Court’s decision in DelCostello. See e.g., Landahl v. PPG Industries, Inc., 746 F.2d 1312, 1314 (7th Cir.1984); Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 302 n. 4 (7th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 976, 79 L.Ed.2d 214 (1984). The issue addressed in DelCostello concerned what statute of limitations should apply in “a suit by an employee or employees against an employer and a union, alleging that the employer had breached a provision of a collective bargaining agreement, and that the union had breached its duty of fair representation by mishandling the ensuing grievance-and-arbitration proceedings.” DelCostello, 103 S.Ct. at 2285. The Supreme Court held that the six-month period in section 10(b) of the NLRA should apply to both the union and the employer. Id. at 2287. Flores contends on appeal that his claims are basically for breach of contract and should therefore be governed by Illinois’ ten-year statute of limitations for written contracts. ILL.REV.STAT. ch. 110, § 13-206. Flores argues that DelCostello does not establish a blanket six-month limitations period for all hybrid actions. Rather, the argument proceeds, DelCostello should be limited to those hybrid cases arising out of a “grievance-and-arbitration proceeding.” This case does not so arise and should be considered a “basic” breach of contract action, the argument concludes, because Flores and the other employees-plaintiffs purportedly had no adequate, meaningful, and effective internal union remedies available because the union unlawfully failed to act on their behalf. Neither the authority cited by" }, { "docid": "21585384", "title": "", "text": "* * 21. Defendants INTERNATIONAL UNION and LOCAL UNION # 433 and LOCAL UNION # 442 [the Union] had the duty and/or by and through the actions of their employees, officers and agents affirmatively undertook the duty to: (a) ensure that Plaintiff’s workplace was safe; and/or * * * * * # (g) ensure that all safety appliances are constructed in a safe and proper manner by competent mechanics and helpers. 22. In committing the actions complained of herein, Defendants INTERNATIONAL UNION and LOCAL UNION # 442 and LOCAL UNION #433 negligently and/or willfully breached the above described duties of care owed by them to Plaintiff for which Plaintiff may recovery [sic] general, special and exemplary damages under Georgia law. The Union took the position that the claims were preempted by the federal labor laws, and it filed petitions to remove both Sams’ and Orr’s actions to federal court. The two cases were removed to the District Court for the Southern District of Georgia, and the Union moved for summary judgment in each case on the basis that the claims were barred by the statute of limitations. In urging summary judgment, the Union argued that the asserted claims were hybrid section 301/fair representation claims. That is, the claims were based in part on a breach of the collective-bargaining agreement between the Union and the employer, actionable under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and in part on a breach of the Union’s duty of fair representation which is a duty implied by the overall scheme of the National Labor Relations Act (NLRA). DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164, 103 S.Ct. 2281, 2291, 76 L.Ed.2d 476 (1983). The statute of limitations applicable to hybrid section 301/fair representation claims is borrowed from section 10(b) of the NLRA, 29 U.S.C. § 160(b), which provides six months in which to challenge unfair labor practices. DelCostello, supra. Accordingly, if the claims are properly characterized as hybrid section 301/fair representation claims, they are barred by the six-month limitations period. Quite similar claims were held in International" }, { "docid": "16705515", "title": "", "text": "most appropriate statute of limitations was the six-year time bar of 42 Pa. Cons.Stat.Ann. § 5527 (Purdon 1982), governing actions for the enforcement of contracts. Thereafter, the Federation moved for summary judgment. On October 13, 1983, the district court granted that motion, and ordered Westinghouse to submit the Armstrong grievance to arbitration. This appeal followed. III. The Appropriate Statute of Limitations When the district court denied Westinghouse’s motion to dismiss on statute of limitations grounds it was without the benefit of the Supreme Court’s subsequent decision in DelCostello v. Int’l. Broth. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). That important decision requires that we consider whether the rule of United Auto Workers v. Hoosier Cardinal Corp., supra, which referred actions under section 301 of the Labor Management Relations Act to state statute of limitations laws, retains vitality. DelCostello involved a suit by union members against their employers for breach of collective bargaining agreements, and against their collective bargaining representatives for breach of the duty of fair representation. Relying on United Parcel Service v. Mitchell, Inc., supra, lower courts had applied the relatively short state law statutes of limitations governing actions to vacate arbitration awards. The Supreme Court reversed, holding that the six-month statute of limitations in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b) which establishes a six-month period for making charges of unfair labor practices to the NLRB, was the appropriate reference. The DelCostello court rejected the statutes of limitation for vacation of arbitration awards as far too short, since an employee pursuing the kind of hybrid section 301 duty of fair representation claim there presented would ordinarily be without the assistance of an expert advising him of the time within which a suit to compel arbitration should be brought. 462 U.S. at —, 103 S.Ct. at 2291. Moreover, the Court rejected Justice Stevens’ suggestion that state-law statutes of limitations for legal malpractice should be used as the closest analogy to a duty of fair representation claim. Id. at —, 103 S.Ct. at 2292. Referring to its recent decision in" }, { "docid": "18752555", "title": "", "text": "was not time-barred. Two issues are presented in our examination of the statute of limitations question. First, the parties dispute whether state or federal law provides the substantive limitations period for Hester’s claims. Second, we must decide when the applicable limitations period began to run. A In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court held that the six-month limitations period in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), applies to “hybrid” section 301 /fair representation claims. The court found that section 10(b) provides a “closer analogy” to the federal cause of action than available state statutes, and that federal labor policies are better served by the six-month limitations rule. In subsequent cases, we have considered whether the principles enunciated in Del-Costello apply outside of the context of “hybrid” section 301/fair representation claims. In Erkins v. United Steelworkers, 723 F.2d 837 (11th Cir.), cert. denied, 467 U.S. 1243, 104 S.Ct. 3517, 82 L.Ed.2d 825 (1984), we applied the section 10(b) six-month limitations rule where the employee claimed only that his union had breached its duty of fair representation. The plaintiff made no corresponding section 301 claim against the employer. Reasoning by analogy to DelCostello, the court concluded that: The application of § 10(b) is even more appropriate here than in DelCostello. In DelCostello the presence of the claim for breach of collective bargaining agreement, which alone would have been governed by a state statute of limitations for suit on a contract, counseled, against adoption of the § 10(b) limitations period. The present action, involving only a fair representation claim, which the court in DelCostello held analogous to an unfair labor practice both in the right asserted and considerations involved, contains no purely contractual element militating against application of § 10(b)’s six-month period. Id. at 839. This court next considered the applicability of DelCostello to claims against a union under the LMRDA, 29 U.S.C. § 401, et seq., in Davis v. UAW, 765 F.2d 1510 (11th Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 1284, 89" }, { "docid": "13008699", "title": "", "text": "motion to dismiss the overtime pay claims under the Fair Labor Standards Act which arose prior to January 19, 1980 (later corrected to January 19, 1981) because such claims were barred by the applicable two-year statute of limitations. 29 U.S.C. § 255(a). Levy’s motion for judgment on the pleadings against Flores was subsequently granted since there was no allegation that he was employed by Levy after January 18, 1981. A final judgment order was entered pursuant to Rule 54(b), and this appeal followed. Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, permits a union employee to sue his employer for the violation of collective bargaining agreements. However, where the union and the employer have agreed to submit disputes to a grievance-arbitration process, the employee must first show that the union has breached its duty of fair representation. See Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The cause of action against the union is implied under the National Labor Relations Act. 29 U.S.C. §§ 151 et seq. To prevail against either the employer or the union, therefore, the employee must show that the employer’s action was contrary to the collective bargaining agreement and that the union breached its duty. Such an action is typically labeled a hybrid section 301/ fair representation claim. DelCostello v. Teamsters, 462 U.S. 151, 161-65, 103 S.Ct. 2281, 2289-91, 76 L.Ed.2d 476 (1983). In the absence of an express federal statute of limitations governing these actions, the appropriate limitations period had been the subject of considerable dispute until the Supreme Court’s decision in DelCostello. See e.g., Landahl v. PPG Industries, Inc., 746 F.2d 1312, 1314 (7th Cir.1984); Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 302 n. 4 (7th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 976, 79 L.Ed.2d 214 (1984). The issue addressed in DelCostello concerned what statute of limitations should apply in “a suit by an employee or employees against an employer and a union, alleging that the" }, { "docid": "10459433", "title": "", "text": "of fair representation requires the union to represent employees in its bargaining unit “honestly and in good faith and without invidious discrimination or arbitrary conduct.” Hines v. Anchor Motor Freight, Inc., 424 U.S. 564, 570, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976). A union breaches its duty when its “conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. at 190, 87 S.Ct. at 916. The Supreme Court, in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), held that the six-month limitations period set forth in § 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(b), is the appropriate statute of limitations for such breach of duty claims. Section 10(b) sets out the statute of limitations for bringing unfair labor practice claims before the National Labor Relations Board. 29 U.S.C. § 160(b). The DelCostello Court noted the “family resemblance” between an unfair labor practice charge and a charge of breach of duty of fair representation brought by an employee against a union. 462 U.S. at 170, 103 S.Ct. at 2293-94. Plaintiff argues that DelCostello is not controlling under the facts of this case because DelCostello involved a “hybrid” suit against both the employer and the union. In such a hybrid suit, an employee may bring an action against the employer for breach of the collective bargaining agreement and against the union for violating its duty of fair representation. Plaintiff contends that because he has made no claim against the employer for breach of the collective bargaining agreement, the six-month statute of limitations does not apply, and the court should adopt the three year statute of limitations from Kansas state law, as found in K.S.A. 60-512. While DelCostello was a hybrid suit, the six-month statute of limitations has also been found applicable to suits brought solely against the union for breach of its duty of fair representation. See Erkins v. United Steelworkers, 723 F.2d 837 (11th Cir.) (applying six-month limitations period to breach of duty of fair representation claim not" }, { "docid": "5995147", "title": "", "text": "Steelworkers independent of the duty implied in the National Labor Relations Act. We affirm though in part on different grounds. I. DelCostello and its application to this case In DelCostello v. International Brotherhood of Teamsters, _ U.S. _, _, 103 S.Ct. 2281, 2293, 76 L.Ed.2d 476, 492 (1983), the Supreme Court held that the six-month statute of limitations of § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b) (1976), applied to a hybrid action combining claims of breach of duty of fair representation against a union with breach of collective bargaining agreement against an employer. Steelworkers argues that this period applies to the present action involving merely a claim of breach of duty of fair representation against a union. The membership contends that the six-month limitations period applies only to hybrid actions. An action involving only a breach of duty of fair representation claim against a union, the membership argues, is governed by a six-year Alabama statute of limitations for suits on contracts, Ala.Code § 6-2-34 (1975), or a one-year Alabama statute of limitations for suits on contracts, Ala. Code § 6-2-39(a) (1975), which recognizes tolling by fraudulent conduct of the officers and renders this action timely. We hold that DelCostello requires application of the six-month statute of limitations of § 10(b). The Court in DelCostello chose the six-month limitations period for a hybrid action because § 10(b) statute provided a “closer analogy” than available state statutes and because “federal policies at stake and the practicalities of litigation” rendered the six-month period appropriate. _ U.S. at _, 103 S.Ct. at 2294, 76 L.Ed.2d at 493. Both the similarity of the right asserted and policy considerations involved between a charge of an unfair labor practice under the NLRA (with its accompanying six-month statute) and a hybrid cause of action required application of the six-month period. Id. _ U.S. at _, 103 S.Ct. at 2293-94, 76 L.Ed.2d at 492-93. This similarity of rights and considerations exists even more clearly when a claimant brings only a breach of duty of fair representation claim against a union. First, the Court in" } ]

[ { "docid": "22752473", "title": "", "text": "will be left a naked Gull, Which flashes now a Phoenix.” Timón of Athens, Act 2, Scene 1, in VII The Works of Shakespeare 294 (Henley ed. 1903). Nor does body execution aid in the collection of a debt if the debtor needs to be out of jail in order to earn the money to repay the debt. H. R. Rep. No. 1698, 57th Cong., 1st Sess., 3, 6 (1902). See 36 Cong. Rec. 1375 (1903). This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. Montana v. United States, 440 U. S. 147, 153 (1979); Parklane Hosiery Co. v. Shore, 439 U. S. 322, 326 n. 5 (1979); Cromwell v. County of Sac, 94 U. S. 351, 352-353 (1877). If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Because respondent does not contend that the state litigation actually and necessarily decided either fraud or any other question against petitioner, we need not and therefore do not decide whether a bankruptcy court adjudicating a § 17 question should give collateral-estoppel effect to a prior state judgment. In another context, the Court has held that a bankruptcy court should give collateral-estoppel effect to a prior decision. Heiser v. Woodruff, 327 U. S. 726, 736 (1946). The 1970 amendments to the Bankruptcy Act, however, have been interpreted by some ' commentators to permit a contrary result. See 1A J. Moore, J. Mulder, & R. Oglebay, Collier on Bankruptcy § 17.16 [6], p. 1650.2 (14th ed. 1978); Countryman, The New Dischargeability Law, 45 Am. Bankr. L. J. 1, 49-50 (1971). But see 1 D. Cowans, Bankruptcy Law and Practice § 253 (1978)." } ]

[ { "docid": "23600962", "title": "", "text": "to a judgment as a matter of law that the debt arising from Order and Judgment entered in the district Court is nondischargeable in the Debtor’s bankruptcy pursuant to 11 U.S.C. § 523(a)(2), (4) and (6). The Plaintiffs noted in their motion that no oral evidence or trial was necessitated by the District Court in that the parties stipulated to certain facts (Exhibit “C” to Plaintiffs’ Motion), and that the Debtor never responded to certain requests for admissions which are deemed admitted pursuant to Fed.R.Civ.P. 36 (Exhibits “D”, “E”, “F” and “G” to Plaintiffs’ motion). Nevertheless this case was submitted on the merits. However, even though the District Court judgment was not a default judgment it does not have res judicata (claims preclusion) effect in a nondischargeability adversary proceeding in this Court. Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979); In re Rudd, (.Estate of David Schubert Deceased, and David Schubert v. Rudd, 104 B.R. 8, 10-22 (Bankr.N.D.Ind.1987). However, the Supreme Court in Brown v. Felsen, in ruling that res judicata did not preclude the bankruptcy court from going behind a prior state court judgment to determine if a debt is nondischargeable stated in a footnote that collateral estoppel should be applied if the state court’s factual findings were based on standards identical to those used by the bankruptcy court in its dischargeability determination. The court stated: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit, [citations omitted] If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar litigation of those issues in bankruptcy court. Brown, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10. A majority of the courts have adhered to' the foregoing analysis by the Supreme Court and applied collateral" }, { "docid": "23600963", "title": "", "text": "judicata did not preclude the bankruptcy court from going behind a prior state court judgment to determine if a debt is nondischargeable stated in a footnote that collateral estoppel should be applied if the state court’s factual findings were based on standards identical to those used by the bankruptcy court in its dischargeability determination. The court stated: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit, [citations omitted] If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar litigation of those issues in bankruptcy court. Brown, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10. A majority of the courts have adhered to' the foregoing analysis by the Supreme Court and applied collateral estoppel when the state law standards as those required to prove nondischargeability of debt under the Bankruptcy Code. See Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981); Matter of Merrill, 594 F.2d 1064, 1067 (5th Cir.1979); Matter of Ross, 602 F.2d 604, 607-08 (3d Cir.1979); In re Shepherd, 56 B.R. 218, 219 (W.D.Va.1985); In re Bishop, 55 B.R. 687, 688-89 (Bankr.W.D.Ky.1985); In re Perrin, 55 B.R. 401, 402 (Bankr.D.N.D.1985); In re D’Annolfo, 54 B.R. 887, 888-89 (Bankr.D.Mass.1985). This Court has also held when a case is actually litigated on the merits, although the prior judgment cannot be given res judicata or claim preclusions effect, if all of the four elements of collateral estoppel or issue preclusions are present, and the non-bankruptcy court applies the same clear and convincing standard of proof, which the Bankruptcy Court must apply in the context of a nondischargeability proceeding, the findings of fact by that Court can have collateral estoppel application in any subsequent nondischargeability proceeding. See In re Tomsic, (Gellenbeck v. Tomsic, 104 B.R. 22, 29-40 (Bankr.N.D.Ind.1987).. The" }, { "docid": "4636640", "title": "", "text": "re Pigge, 539 F.2d [369] at 371; 1 D. Cowans, Bankruptcy Law and Practice § 253, p. 298 (1978). Compare 1A J. Moore, J. Mulder, & R. Oglebay, Collier on Bankruptcy ¶ 17.16[6], p. 1650.1 n. 50 (14th ed. 1978) (1970 Act), with id., 1117.16[4], p. 1643 (prior state law). Id., 442 U.S. at 135-37, 99 S.Ct. at 2111-12, 60 L.Ed.2d at 774-75. The Courts have consistently applied the holding in the Brown case in dischargeability proceedings under 11 U.S.C. § 523(c). See, e.g., Carey Lumber Co. v. Bell, 615 F.2d 370 (5th Cir.1980); In re Goodman, 25 B.R. 932 (Bankr.N.D.Ill.1982); In re Spector, 22 B.R. 226 (Bankr.N.D.N.Y. 1982); In re Dohm, 19 B.R. 134 (Bankr.N.D.Ill.1982). It should be noted that the Brown case, did not involve the issue of whether issue preclusion or collateral estoppel effect should be given to a prior state court judgment by the bankruptcy court in the non-dischargeability context but the Court indicated that collateral estoppel could be applicable leaving the question open. As the Court stated: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. Montana v. United States, 440 U.S. 147, 153, 59 L.Ed.2d 210, 99 S.Ct. 970 [973] (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 58 L.Ed.2d 552, 99 S.Ct. 645 [649 n. 5] (1979); Cromwell v. County of Sac, [4 Otto 351], 94 U.S. 351, 352-353, 24 L.Ed. 195 (1877). Id, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of §17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. (Emphasis added). Brown v. Felsen, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10, 60 L.Ed.2d at 776 n. 10. To resolve this issue a close analysis of the United States Constitution, the Bankruptcy Code and the" }, { "docid": "5166386", "title": "", "text": "discharge- ability issues. Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). The Supreme Court in Brown held that a bankruptcy court is not barred by res judi-cata from determining, independent of a state-court judgment against the debtor, the nature of a debt to determine its dis-chargeability, and found that in making that determination, “the bankruptcy court is not confined to a review of the judgment and record in the prior state court proceeding when considering the dischargeability of respondent’s debt,_” In Brown however, the Supreme Court clearly distinguished between the application of res judi-cata and the application of collateral estop-pel: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Where res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. [Citations omitted.] If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of Sec. 17 [of the former Bankruptcy Act; similar to section 523 of the present Bankruptcy Code], then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Brown, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10. However, although the bankruptcy court in dischargeability actions under § 523(a) ultimately determines whether or not a debt is dischargeable, the doctrine of collateral estoppel may be invoked to bar relitigation of the factual issues underlying the determination of dischargeability. The law in this Circuit has been enunciated in In re Shuler, 722 F.2d 1253, 1255 (5th Cir.1984), cert. denied, 469 U.S. 817, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984) “that collateral estoppel — arising from an earlier non-bankruptcy suit’s determination of subsidiary facts that were actually litigated and necessary to the decision — may properly be invoked by the bankruptcy court to bar relitigation of those issues, even though the bankruptcy court retains the exclusive jurisdiction to determine the ultimate question of the dischargeability under federal bankruptcy law of" }, { "docid": "18521137", "title": "", "text": "state court was proof by a preponderance of the evidence, whereas the correct standard of proof for dischargeability proceedings under section 523(a)(6) of the Bankruptcy Code is clear and convincing evidence. Debtor also maintains that, because the state court judgment has been appealed, Plaintiffs motion for summary judgment is not ripe for decision and this court should not rule on the motion until the state court appeals process has been completed. CONCLUSIONS OF LAW In Brown v. Felsen, 442 U.S. 127, 138-139, 99 S.Ct. 2205, 2213, 60 L.Ed.2d 767 (1979), the Supreme Court held that res judicata does not apply to dischargeability proceedings and that a bankruptcy court may consider evidence extrinsic to the judgment and record of a prior state suit. However, the Court expressly left open the question of whether collateral estoppel is applicable in dischargeability proceedings: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit, (citations omitted) If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Because respondent does not contend that the state litigation actually and necessarily decided either fraud or any other question against petitioner, we need not and therefore do not decide whether a bankruptcy court adjudicating a § 17 question should give collateral-estoppel effect to a prior decision. Id. at n. 10. Subsequently, this court’s circuit court of appeals stated that “[ajpplying collateral estoppel is logically consistent with the Supreme Court’s decision in Brown and the exclusive jurisdiction of the bankruptcy courts while at the same time encouraging judicial economy.” Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981). The Sixth Circuit found no reason to permit the relit-igation of facts previously litigated which were necessary to the outcome of prior litigation and held “that" }, { "docid": "13179116", "title": "", "text": "In Brown, however, the Court clearly distinguished between the application of res judicata and the application of collateral estoppel. The Court stated that: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, [governing the dischargeability of certain debts] then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Because respondent does not contend that the state litigation actually and necessarily decided either fraud or any other question against petitioner, we need not and therefore do not decide whether a bankruptcy court adjudicating a § 17 question should give collateral-estoppel effect to a prior state judgment. In another context, the Court has held that a bankruptcy court should give collateralestoppel effect to a prior decision. The 1970 amendments to the Bankruptcy Act, however, have been interpreted by some commentators to permit a contrary result. Id. at 139 n. 10, 99 S.Ct. at 2213 n. 10 (citations omitted). Despite this guidance by the Supreme Court, there is disagreement among the courts regarding the collateral estoppel effect accorded state court judgments in bankruptcy proceedings involving dischargeability. Some courts, because of the bankruptcy courts’ exclusive jurisdiction in determining dischargeability, will give no collateral estoppel effect to state court determinations, while other courts do apply collateral estoppel when the issue was litigated previously by the parties. Compare In re Rahm, 641 F.2d 755, 757 (9th Cir.) (a prior state court judgment has no collateral estoppel force on a bankruptcy court considering dischargeability, but may establish a prima facie case of nondischargeability), cert. denied, 454 U.S. 860, 102 S.Ct. 313, 70 L.Ed.2d 157 (1981) with Matter of Shuler, 722 F.2d 1253, 1256 (5th Cir.) (“collateral estoppel may apply to subsidiary facts actually litigated and necessarily decided”), cert. denied, 469" }, { "docid": "18581170", "title": "", "text": "dischargeability of a judgment debt for attorney fees and costs, a matter which has not yet been litigated. Orrick states that doctrines of res judicata, collateral estoppel and estoppel by judgment do not apply to this bankruptcy proceeding and that Orrick is therefore entitled to discharge of this debt and denial of Safeco’s motion for summary judgment. The first matter for consideration is the extent to which this Court is bound by the prior action. Res judicata and collateral estoppel are the two primary legal devices used to ensure the finality of judicial decisions. Res judicata, or “claim preclusion” prevents the relitigation of claims and defenses available to parties in a prior suit. Collateral estoppel, or “issue preclusion” prevents parties from relitigating only those issues actually and necessarily litigated in a prior proceeding. Ferriel, The Preclusive Effect of State Court Decisions in Bankruptcy, 58 American Bankr.L.J. 349, 350 (Fall 1984). In Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), the U.S. Supreme Court refused to apply the doctrine of res judicata in dis-chargeability proceedings pursuant to § 17 of the former Bankruptcy Act, and held that a bankruptcy court is not confined to a review of the judgment and record in prior state court proceedings when considering the dischargeability of a judgment debt. In so doing, however, the Court added: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit ... (citations omitted) ... If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Id., note 10. These same principles apply to matters in which there has been a prior federal court decision. “... [TJhere was little difference in the doctrine of res judicata as expounded in state and" }, { "docid": "4680975", "title": "", "text": "the debtor argues that there are material issues of fact which exist that must be litigated which preclude summary judgment. The doctrine of res judicata, or claim preclusion, is distinguishable from the principle of collateral estoppel in that res judicata forecloses all that which might have been litigated previously by the parties, whereas collateral estoppel treats as final only those issues actually and necessarily decided in a prior suit. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). In Brown v. Felsen, 442 U.S. 127, 139, 99 S.Ct. 2205, 2213, 60 L.Ed.2d 767 (1979), in dealing with the principle of res judicata, the Supreme Court noted in footnote 10 that if a state court determined factual issues in a state law question, using standards identical to those of § 17 of the former Bankruptcy Act (now 11 U.S.C. § 523), the principle of collateral estoppel, in the absence of countervailing policy, would bar relitigation of those issues in the bankruptcy court. In Spilman v. Harley, 656 F.2d 224 (6th Cir.1981), the court determined that issue preclusion was not at odds with the Supreme Court’s decision in Brown v. Felsen stating, Applying collateral estoppel is logically consistent with the Supreme Court’s decision in Brown and the exclusive jurisdiction of the bankruptcy court while at the same time encouraging judicial economy. The determination whether or not a certain debt is dischargeable is a legal conclusion based upon the facts in the case. The bankruptcy court has the exclusive jurisdiction based upon the facts in the case ... Therefore, res judicata does not apply to prevent litigation of every issue which might have been covered in the state court proceeding on the debt. However, that Congress intended the bankruptcy court to determine the final result — dischargeability or not— does not require the bankruptcy court to redetermine all the underlying facts. (Emphasis added). Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981); See In re Wallace, 840 F.2d 762" }, { "docid": "18602179", "title": "", "text": "before this court is whether the state court’s judgment that Wallace intentionally embezzled funds entrusted to him was binding on the bankruptcy court and barred relit-igation in the dischargeability action on the issue of whether the debt owing to Kle-mens was a debt for embezzlement, rendering the debt nondischargeable under section 523(a)(4). II. In Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), the United States Supreme Court held that a bankruptcy court is not barred by res judicata from determining, independent of a state-court judgment against the debtor, the nature of a debt to determine its discharge-ability. However, the Supreme Court noted: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. [Citations omitted.] If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17 [of the former Bankruptcy Act; similar to section 523 of the present Bankruptcy Code], then collateral estop-pel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Id. at 139 n. 10, 99 S.Ct. at 2213 n. 10. Since Brown, the doctrine of collateral es-toppel has been recognized in cases involving a bankruptcy court’s examination of the dischargeability of a debt. See, e.g., Harold v. Simpson and Co. v. Shuler (In re Shuler), 722 F.2d 1253, 1255 (5th Cir.), cert. denied, 469 U.S. 817, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984); Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981); cf. Lombard v. Axtens (In re Lombard), 739 F.2d 499, 502 (10th Cir.1984) (dicta indicating that collateral estoppel may be invoked in dischargeability actions under section 17(a)(2) of former Bankruptcy Act, 11 U.S. C. § 35(a)(2) (1976), where bankruptcy court had exclusive jurisdiction to determine dischargeability; question left unanswered since collateral estoppel requirements not satisfied); Goss v. Goss, 722 F.2d 599 (10th Cir.1983) (collateral estoppel recognized in dischargeability" }, { "docid": "18581171", "title": "", "text": "judicata in dis-chargeability proceedings pursuant to § 17 of the former Bankruptcy Act, and held that a bankruptcy court is not confined to a review of the judgment and record in prior state court proceedings when considering the dischargeability of a judgment debt. In so doing, however, the Court added: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit ... (citations omitted) ... If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Id., note 10. These same principles apply to matters in which there has been a prior federal court decision. “... [TJhere was little difference in the doctrine of res judicata as expounded in state and federal courts. Indeed, that is still true, so that it is still usually a moot question whether the effect of a federal judgment is determined by federal law or state law.” Restatement, Second Judgments § 87 comment a (1982). See also comment b. In Matter of Ross, 602 F.2d 604 (3d Cir.1979), the court said, ... Brown v. Felsen, (citations omitted) indicates that the doctrine of collateral estoppel may be applicable to dis-chargeability determination by the bankruptcy court. In order for the doctrine to bar relitigation of the dischargeability issue, the bankruptcy court would have to find that: ‘... (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) the issue must have been actually litigated; (3) that issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the prior judgment.’ Haize v. Hanover Ins. Co., 536 F.2d 576, 579 (3d Cir.1976), In re Creekmore, 20 B.R. 164, 167 (Bankr.W.D.Okla.1982). From the record, it is clear" }, { "docid": "18745779", "title": "", "text": "malicious conversion. 442 U.S. at 138, 99 S.Ct. at 2212. Thus, the bankruptcy court in determining the dischargeability of a debt is not bound by the legal and factual determinations made by a state court in cases in which the state court did not determine all the elements necessary to a finding of nondis-chargeability. Brown, however, left unresolved the related issue of the applicability of collateral estoppel. In a footnote, the Court indicated that collateral estoppel should be applied if the state court’s factual findings were based on standards identical to those used by the bankruptcy court in its dis-chargeability determination. This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit, [citations omitted] If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar litigation of those issues in bankruptcy court. Brown, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10. Most courts, especially in recent months, have followed the lead of Brown and applied collateral estoppel when the state law standards match those of the Bankruptcy Code. See Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981); Matter of Merrill, 594 F.2d 1064, 1067 (5th Cir.1979); Matter of Ross, 602 F.2d 604, 607-08 (3d Cir.1979); In re Shepherd, 56 B.R. 218, 219 (W.D.Va.1985); In re Bishop, 55 B.R. 687, 688-89 (Bankr.W.D.Ky.1985); In re Perrin, 55 B.R. 401, 402 (Bankr.D.N.D.1985); In re D’Annolfo, 54 B.R. 887, 888-89 (Bankr.D.Mass.1985). But see In re DiNoto, 46 B.R. 489, 491 (9th Cir.BAP 1984); In re Moultrie, 51 B.R. 368, 373 (Bankr.W.D.Wash.1985). The Seventh Circuit to date has not addressed the application of collateral estop-pel to bankruptcy cases. However, two cases in this court have addressed the issue, In re Wade, 26 B.R. 477 (Bankr.N.D.Ill.1983) and Matter of Dohm, 19 B.R. 132 (Bankr.N.D.Ill.1981). These" }, { "docid": "237854", "title": "", "text": "costs expended to secure a fine or penalty is not literally within the language of § 523(a)(7), it is so closely related that it lies within the sphere of that subsection and thus is nondischargeable. This is anal ogous to the line of cases holding that attorneys’ fees awarded to a spouse may be so closely akin to debts which are non-dischargeable under § 523(a)(5) that the fees are likewise nondischargeable. In Re Spong, 661 F.2d 6 (2d Cir.1981); In Re Gwinn, 20 B.R. 233 (Bkrtcy.App.Nev. 9th Cir.1982); In Re Glover, 16 B.R. 213 (Bkrtcy.M.D.Fla.1981); In Re Knight, 29 B.R. 748 (D.C.W.D.N.C.1983); Mattern v. Seale (In Re Mattern), 33 B.R. 566 (Bkrtcy.S.D.Ala.1983). The third issue is whether collateral estoppel bars the debtors from relitigating in this court on the dischargeability complaint the state court’s conclusion that the debts were procured by fraud. In Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), the Supreme Court stated that, on the entry in state court of a default judgment on a debt, res judicata would not bar the debtor from presenting evidence in bankruptcy court that the debt was dischargeable. The Court ruled as follows on the related question before us: “This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17 [the precursor of § 523], then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court.” (cites omitted.) 442 U.S. at 139, n. 10, 99 S.Ct. at 2213, n. 10. The elements of collateral estoppel have been summarized as follows: Thus, there are at least four requirements which must be met before collateral estoppel effect can be given to a prior action: (1) the issue sought to be precluded must be the" }, { "docid": "16870325", "title": "", "text": "to 28 U.S.C. § 158(a), Tsamasfyros appealed the judgment of the bankruptcy court to the district court. On review, the district court affirmed the result reached by the bankruptcy court, although it concluded that Nelson’s judgment debt was “more logically” non-dis-chargeable under 11 U.S.C. § 523(a)(4) rather than under 11 U.S.C. § 523(a)(2)(A). The district court’s Memorandum Opinion and Order now appears as In re Tsamasfy-ros, 114 B.R. 721 (D.Colo.1990). Background facts detailed there will not be repeated here. Pursuant to 28 U.S.C. § 158(d), Tsamasfyros seeks our review of the district court’s judgment and order. As indicated, the issue is whether the state district court judgment should be given preclusive effect in the bankruptcy proceeding. In other words, was Nelson’s judgment debt properly determined on summary judgment to be non-dischargea-ble under 11 U.S.C. § 523 on the grounds of collateral estoppel? In Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), the Supreme Court held that, insofar as res judi-cata is concerned, a bankruptcy court is not confined to a review of the judgment and record in a prior state court proceeding when determining the dischargeability of a debt and that when a debtor asserts a new defense of bankruptcy, res judicata does not bar the creditor from offering additional evidence to meet that defense. However, in Brown the Supreme Court went on to recognize the distinction between res judicata and collateral estoppel with the following comment: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit [citation omitted]. If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, [of the former Bankruptcy Act, similar to section 523 of the present Bankruptcy Code] then collateral estop-pel, in the absence of countervailing statutory policy, would bar relitigation of these issues in the bankruptcy court. Id. at 139 n. 10, 99" }, { "docid": "2302698", "title": "", "text": "Hall court’s reliance on this statement to support a general rule against giving any preclusive effect to state court judgments is misplaced. As the Brown Court noted: This case concerns res judicata only, and not the narrower principle of collateral es-toppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. If in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17 [the predecessor of § 523], then collateral es-toppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. 442 U.S. at 139, 99 S.Ct. at 2213, 60 L.Ed.2d at 776 n. 10 (citations omitted). Further, as the Sixth Circuit subsequently noted, the Brown Court’s concern about premature litigation of dischargeability issues was addressed to the situation in which the facts necessary for a determination of non-dischargeability were not necessary to the state court’s determination. Spilman v. Harley, 656 F.2d at 224, 227-28 (6th Cir.1981). When, however, the factual issues necessary for discharge-ability determination were also necessary to the state court determination, the parties would not have to anticipate the bankruptcy proceedings and the state courts would not be determining issues irrelevant to the state proceedings. Collateral estop-pel is applied to encourage the parties to present them best arguments on the issues in question in the first instance and thereby save judicial time. There is no reason to suppose that parties will not vigorously present their case on issues necessary to the state court proceeding or that the bankruptcy court will be any more fair or accurate than the state court in a determination of the facts. Id. at 228. The Hall court, however, relied on Spil-man to further support a federal exception to the application of state law collateral estoppel principles. In Spilman, the Sixth Circuit did not apply state law collateral estoppel principles but, instead, applied a standard derived from other federal cases. 656 F.2d at 228. As part" }, { "docid": "5126593", "title": "", "text": "court proceeding for dissolution of the partnership between the plaintiff and the defendant. In that proceeding the state court had found a fiduciary relationship and acts which demonstrated fraud and defalcation. District Court Goet-tel affirmed saying “The bankruptcy judge correctly decided that the defalcation issue conclusively had been determined by the state court, and that appellant would be collaterally estopped from relitigating the matter in this proceeding.” 94 B.R. at 301. The Court of Appeals affirmed without writing an opinion. Since Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), collateral estoppel has been recognized as applicable to proceedings within the bankruptcy court’s exclusive jurisdiction: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit.... If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17 [section of the Bankruptcy Act relevant to discharge-ability] then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the Bankruptcy Court. 442 U.S. at 139 (n. 10), 99 S.Ct. at 2213 (n. 10). Following Brown, writing for the Sixth Circuit, Circuit Judge Kennedy concluded: Applying collateral estoppel is logically consistent with the Supreme Court decision in Brown and the exclusive jurisdiction of the bankruptcy courts while at the same time encouraging judicial economy ... that Congress intended the bankruptcy court to determine the final result—dischargeability or not—does not require the bankruptcy court to redetermine all the underlying facts. Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981). Thus, “although dischargeability determination is a legal one within the exclusive province of the bankruptcy court, to be made by applying the statute to the facts of the case, it does not follow that the bankruptcy court must relitigate the entire factual record. Those facts conclusively determined in an earlier proceeding involving identical issues, that were actually and necessarily litigated, should" }, { "docid": "237855", "title": "", "text": "judicata would not bar the debtor from presenting evidence in bankruptcy court that the debt was dischargeable. The Court ruled as follows on the related question before us: “This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17 [the precursor of § 523], then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court.” (cites omitted.) 442 U.S. at 139, n. 10, 99 S.Ct. at 2213, n. 10. The elements of collateral estoppel have been summarized as follows: Thus, there are at least four requirements which must be met before collateral estoppel effect can be given to a prior action: (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) [it] must have been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the prior judgment. In Re McMillan, 579 F.2d 289, 291-92 (3d Cir.1978). As we quoted above, the state court based its judgment on the “clear and convincing evidence” standard although apparently the decision in that case only required the “preponderence of evidence” standard. The debtors also assert that although the court made a finding of fraud, such a finding was not essential to the judgment. Since the finding of fraud and the use of the “clear and convincing” standard of evidence were not necessary to the state court’s determination, collateral es-toppel cannot be applied since that determination was not essential to the state court judgment. We will list the matter for trial and allow the submission to the court of all exhibits and testimony that were admitted by the state court. The parties may then submit any additional admissable" }, { "docid": "19068119", "title": "", "text": "& Development Co. Inc., 1 B.R. 279 (Bkrtcy.E.D.Pa.1979), specifically stated that four things are required for the doctrine of res judicata to apply: (1) identity of the thing being sued upon; (2) identity of the cause' of action; (3) identity of persons and parties; and (4) identity of capacity of a party to sue or be sued. Dealing with the other aspect of res judicata, In re Webster, 1 B.R. 61 (Bkrtcy.E.D.Va.1979), quoting McMillan, et al. v. Freedom Finance Co. Inc., 579 F.2d 289 (3rd Cir. 1978), stated that in order to give collateral estop-pel effect to a prior action four requirements must be met: (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) that issue must have been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the prior judgment. In the two bankruptcy cases above, which deal with the res judicata doctrine, there was a prior state court judgment and subsequent nondischargeability litigation similar to the situation at bar. Under these circumstances, the courts have identified both a res judicata and a collateral estoppel issue. Under the doctrine of collateral estoppel, any issue actually and necessarily decided in the state court action is precluded from being relitigated in bankruptcy court during resolution of a dischargeability complaint. In fact, the Supreme Court just recently reiterated this conclusion: If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Brown v. Felsen, 442 U.S. 127, 139 n.10, 99 S.Ct. 2205, 2213 n.10, 60 L.Ed.2d 767, 776 n.10 (1979). Citing Brown v. Felsen, Judge Britton in In re Evans, 1 B.R. 229 (Bkrtcy.S.D.Fla.1979), after concluding that a state court judgment established each of the elements essential to deny discharge under § 17(a)(4), held that the debtor was estopped by that judgment from relitigating those" }, { "docid": "16870326", "title": "", "text": "review of the judgment and record in a prior state court proceeding when determining the dischargeability of a debt and that when a debtor asserts a new defense of bankruptcy, res judicata does not bar the creditor from offering additional evidence to meet that defense. However, in Brown the Supreme Court went on to recognize the distinction between res judicata and collateral estoppel with the following comment: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit [citation omitted]. If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, [of the former Bankruptcy Act, similar to section 523 of the present Bankruptcy Code] then collateral estop-pel, in the absence of countervailing statutory policy, would bar relitigation of these issues in the bankruptcy court. Id. at 139 n. 10, 99 S.Ct. at 2213 n. 10. In In re Wallace, 840 F.2d 762 (10th Cir.1988) we recognized the distinction made by the Supreme Court in Brown between res judicata and collateral estoppel in bankruptcy proceedings and in so doing we stated that although the bankruptcy court ultimately determines whether a debt is dischargeable under 11 U.S.C. § 523, the doctrine of collateral estoppel may be invoked to preclude relitigation of the factual issues underlying the determination of dis-chargeability. Id. at 764-65. In such circumstances, collateral estoppel is binding on the bankruptcy court and precludes re-litigation of factual issues if (1) the issue to be precluded is the same as the one litigated in the earlier state proceeding; (2) the issue was actually litigated in the prior proceeding; and (3) the state court’s deter mination of that issue was necessary to the resulting final and valid judgment. Id. In the bankruptcy court, the district court, and in this court, Tsamasfyros argued that the state court judgment based on breach of fiduciary duty was discharge-able because the state" }, { "docid": "3741501", "title": "", "text": "to the final judgment of a court as to any matter which was actually raised or that could have been raised in support of that claim. Alternatively, collateral estoppel, or “issue preclusion” as it is known, acts as a bar to only those issues that were raised and actually litigated and constituted necessary findings to the litigation. Wright, Miller & Cooper, Federal Practice and PROcedure: Jurisdiction § 4402 (1981). Res judicata cannot form the basis for a decision of nondischargeability as held by the United States Supreme Court in its decision of Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). The Court explained that the application of res judicata to nondischargeability proceedings was impracticable for two reasons. First, the Court recognized that during the former litigation, the bankruptcy would, in most cases, be merely a “hypothetical” and therefore, the parties would not have reason to advance arguments of nondischargeability. Id. at 134-35, 99 S.Ct. at 2211. Second, the Court suggested that it was Congress’s intent to confer jurisdiction over nondischargeability to the federal bankruptcy courts, thus it was improper to place that discretion with another court. Id. at 135-36, 99 S.Ct. at 2211-12. However, in Brown, the Court did note that collateral estoppel may apply in nondischargeability proceedings. The court reasoned that: Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit.... If in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in bankruptcy court. Id. at 139 n. 10, 99 S.Ct. at 2213, n. 10 (citations omitted). See also Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (holding that collateral estoppel applies in non-dischargeability actions). The application of collateral estoppel is appropriate only “if the examination of the record of the earlier proceeding satisfied the bankruptcy court that the issue was" }, { "docid": "4607979", "title": "", "text": "by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. Thus, while res judicata bars relitigation of all related issues which were or could have been litigated in a prior case, collateral estoppel bars only the relitigation of issues which were actually decided in the prior case. In Brown v. Felsen, the United States Supreme Court held that the doctrine of res judicata does not apply in a complaint under § 17(a)(2) and (4) of the Act to bar the bankruptcy court from considering any issues or evidence in addition to a state court record in a suit charging the bankrupt with fraud, deceit and malicious conversion. However, the Supreme Court did not hold that the doctrine of collateral estoppel would not apply in such a case. In this respect, the Court stated: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit .... If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral es-toppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. We conclude from the above, therefore, that collateral estoppel may be applicable in a case under § 17(a)(4) of the Act. To apply the doctrine of collateral estoppel, however, four elements must be present: Thus, there are at least four requirements which must be met before collateral estoppel effect can be given to a prior action: (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) that issue must have been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the prior judgment. In the case at bench, the issue" } ]

[ { "docid": "13396445", "title": "", "text": "pain and suffering damages for appellees’ survival action claims under general maritime law. 1. Availability of pain and suffering damages Lockheed relies on the Supreme Court’s decisions in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978), and Zicherman v. Korean Air Lines Co., Ltd., — U.S.-, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996), as well as recent decisions in the Ninth and District of Columbia Circuits to support the proposition that general maritime law survival action claims and/or pain and suffering damages are unavailable when a death occurs on the high seas. See Saavedra v. Korean Air Lines Co., Ltd., 93 F.3d 547, 554 (9th Cir.) (“because DOHSA does not allow recovery for nonpecuniary damages, we cannot ‘supplement’ Congress’ remedy, allowing a general maritime survival action for nonpecuniary damages, including ... pre-death pain and suffering”), cert. denied, — U.S.-, 117 S.Ct. 584, 136 L.Ed.2d 514 (1996); Dooley v. Korean Air Lines Co., Ltd. (In re Korean Air Lines Disaster of September 1, 1988), 117 F.3d 1477, 1481-83 (D.C.Cir.1997) (same). We find these cases either inapposite or unpersuasive. With respect to the Supreme Court’s decisions, we observe that the Court’s recent Zicherman decision expressly leaves open the question of whether DOHSA forecloses a non-DOHSA based pain and suffering award. See Zicherman, — U.S. at -n. 4, 116 S.Ct. at 636 n. 4; see also Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 215 n. 1, 106 S.Ct. 2485, 2490 n. 1, 91 L.Ed.2d 174 (1986) (declining to address the question of whether a DOHSA recovery can be supplemented with pain and suffering recovery under an applicable state law survival action statute). Likewise in Higginbotham, the Supreme Court recognized DOHSA as providing the sole remedy in actions for wrongful death occurring on the high seas, but did not directly address the question of whether a survival action based on general maritime law could be maintained in conjunction with a DOHSA wrongful death action. See Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890, 893-94 (5th Cir.1984). “Given this, Higginbotham cannot be read as authority" } ]

[ { "docid": "10008394", "title": "", "text": "suit to \"a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is sought.” § 762. DOHSA also includes a limited survival provision: In situations in which a person injured on the high seas sues for his injuries and then dies prior to completion of the suit, “the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this chapter for the recovery of the compensation provided in section 762.” § 765. Other sections establish a limitations period, § 763a, govern actions under foreign law, §764, bar contributory negligence as a complete defense, § 766, exempt the Great Lakes, navigable waters in the Panama Canal Zone, and state territorial waters from the Act’s coverage, § 767, and preserve certain state-law remedies and state-court jurisdiction, ibid. DOHSA does not authorize recovery for the decedent’s own losses, nor does it allow damages for nonpecuniary losses. In Mobil Oil Corp. v. Higginbotham, 436 U. S. 618 (1978), we considered whether, in a ease of death on the high seas, a decedent’s survivors could recover damages under general maritime law for their loss of society. We held that they could not, and thus limited to territorial waters those cases in which we had permitted loss of society damages under general maritime law. Id., at 622-624; see n. 1, supra. For deaths on the high seas, DOHSA “announces Congress’ considered judgment on such issues as the beneficiaries, the limitations period, contributory negligence, survival, and damages.” 436 U. S., at 625. We thus noted that while we could “fil[l] a gap left by Congress’ silence,” we were not free to “rewrit[e] rules that Congress has affirmatively and specifically enacted.” Ibid. Because “Congress ha[d] struck the balance for us” in DOHSA by limiting the available recovery to pecuniary losses suffered by surviving relatives, id., at 623, we had “no authority to substitute our views for those expressed by Congress,” id., at 626. Hig- gmbotham, however, involved only the scope of the remedies available in a wrongful-death action, and thus" }, { "docid": "15061403", "title": "", "text": "a century ago when the Supreme Court held in THE HARRISBURG, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886) that the general maritime law of the United States afforded no remedy for wrongful death. The admiralty courts were not entirely stymied by this forced parsimony and state wrongful death acts, if available, were enforced in admiralty to allow recovery in wrongful death cases. This practice was approved by the Supreme Court in the case of a high seas death in THE HAMILTON, 207 U.S. 398, 52 L.Ed. 264, 28 S.Ct. 133 (1907). Though the admiralty courts were disposed to grant a remedy when one could be fashioned, in the case of high seas deaths the coverage supplied by state statutes was not uniform, and did not adequately fill the void left by THE HARRISBURG. This is one of the considerations which led to the passage in 1920 of DOHSA and its companion legislation, the Jones Act (currently codified at 46 U.S.C. § 688 et seq.) See Moragne v. States Marine Lines, 398 U.S. 375, 393-94, 90 S.Ct. 1772, 1783-84, 26 L.Ed.2d 339, 351-53 (1970). Section 1 of DOHSA provides: Whenever the death of a person shall be caused by a wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any state, ... the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if the death had not ensued. 46 U.S.C. § 761. After 1920, DOHSA supplied a uniform remedy for deaths occurring over a marine league from shore; within territorial waters, after some initial confusion, state statutes continued to hold sway. The evolution of maritime wrongful death remedies continued in 1970 with Moragne v. States Marine Lines, in which the Supreme Court overruled THE HARRISBURG and established a remedy for wrongful death grounded in the general maritime law of the United States." }, { "docid": "22731053", "title": "", "text": "Bar Drilling Co., 770 F. 2d 455 (1985), holding that a nondependent parent may not recover for loss of society in a general maritime wrongful death action. 882 F. 2d, at 989. It also held that general maritime law does not permit a survival action for decedent’s lost future earnings. Id., at 987. We granted Miles’ petition for certiorari on these two issues, 494 U. S. 1003 (1990), and now affirm the judgment of the Court of Appeals. II We rely primarily on Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970). Edward Moragne was a longshoreman who had been killed aboard a vessel in United States and Florida territorial waters. His widow brought suit against the shipowner, seeking to recover damages for wrongful death due to the unseaworthiness of the ship. The District Court dismissed that portion of the complaint because neither federal nor Florida statutes allowed a wrongful death action sounding in unseaworthiness where death occurred in territorial waters. General maritime law was also no help; in The Harrisburg, 119 U. S. 199 (1886), this Court held that maritime law does not afford a cause of action for wrongful death. The Court of Appeals affirmed. This Court overruled The Harrisburg. After questioning whether The Harrisburg was a proper statement of the law even in 1886, the Court set aside that issue because a “development of major significance ha[d] intervened.” Moragne, supra, at 388. Specifically, the state legislatures and Congress had rejected wholesale the rule against wrongful death. Every State in the Union had enacted a wrongful death statute. In 1920, Congress enacted two pieces of legislation creating a wrongful death action for most maritime deaths. The Jones Act, 41 Stat. 1007, as amended, 46 U. S. C. App. §688, through incorporation of the Federal Employers’ Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. §§ 51-59, created a wrongful death action in favor of the per sonal representative of a seaman killed in the course of employment. The Death on the High Seas Act (DOHSA), 41 Stat. 537, 46 U. S. C. App." }, { "docid": "10008393", "title": "", "text": "was killed by that conduct. See generally R. Hughes, Handbook of Admiralty Law 222-223 (2d ed. 1920). This rule stemmed from the theory that a right of action was personal to the victim and thus expired when the victim died. Accordingly, in the absence of an Act of Congress or state statute providing a right of action, a suit in admiralty could not be maintained in the courts of the United States to recover damages for a person’s death. See The Harrisburg, 119 U. S. 199, 213 (1886); The Alaska, 130 U. S. 201, 209 (1889). Congress passed such a statute, and thus authorized recovery for deaths on the high seas, with its enactment of DOHSA. DOHSA provides a cause of action for “the death of a person . . . caused by wrongful act, neglect, or default occurring on the high seas,” §761; this action must be brought by the decedent’s personal representative “for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative,” ibid. The Act limits recovery-in such a suit to \"a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is sought.” § 762. DOHSA also includes a limited survival provision: In situations in which a person injured on the high seas sues for his injuries and then dies prior to completion of the suit, “the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this chapter for the recovery of the compensation provided in section 762.” § 765. Other sections establish a limitations period, § 763a, govern actions under foreign law, §764, bar contributory negligence as a complete defense, § 766, exempt the Great Lakes, navigable waters in the Panama Canal Zone, and state territorial waters from the Act’s coverage, § 767, and preserve certain state-law remedies and state-court jurisdiction, ibid. DOHSA does not authorize recovery for the decedent’s own losses, nor does it allow damages for nonpecuniary losses. In Mobil Oil Corp. v. Higginbotham, 436 U. S. 618 (1978), we considered whether," }, { "docid": "7577940", "title": "", "text": "of damages by nondepen-dent beneficiaries and maritime law would not, the Supremacy Clause mandates preemption of state law in this case. Id. We go further and hold that federal maritime law, whether or not it conflicts with state law, applies to actions for wrongful death in state territorial waters brought under the admiralty jurisdiction of the federal courts. We premise this holding upon Supreme Court precedent which, over the past thirty-three years, has transformed the face of the federal maritime wrongful death remedy. In The Harrisburg, 119 U.S. 199, 213, 7 S.Ct. 140, 146, 30 L.Ed. 358 (1886), the Supreme Court, after reviewing maritime law “as accepted and received by maritime nations generally,” held that there was no right to recover for wrongful death under the general maritime law “in the absence of a statute giving the right.” The Court “expressfed] no opinion” whether a suit could be maintained under a state wrongful death statute, because the suit at issue would have been barred in any event by the applicable state statutes of limitations. Id. at 214, 7 S.Ct. at 147. In Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90,. 66 L.Ed. 210 (1921), however, the Court did reach the issue and held that state wrongful death statutes could provide a remedy for a wrongful death in state territorial waters. In 1920, Congress changed the complexion of the recovery available for wrongful death under maritime law by passing two statutes which specifically afforded federal remedies for wrongful death to certain classes of plaintiffs in maritime actions. One statute, the Death on the High Seas Act (“DOHSA”), 46 U.S.C.app. §§ 761-767 (1988), gave the representative of anyone killed on the high seas (i.e., more than three miles from shore) the right to bring a wrongful death action. DOHSA explicitly does not apply to “any waters within the territorial limits of any State.” Id. § 767. The second statute, the Jones Act, 46 U.S.C.app. § 688 (1988), gave the personal representative of a seaman who died in the course of employment the right to maintain a wrongful" }, { "docid": "13396449", "title": "", "text": "in Dooley v. Korean Air Lines Co., Ltd., a case which also arose from the Sea of Japan Korean airliner tragedy. In Dooley, the District of Columbia Circuit concluded that DOHSA reflects a conscious congressional choice to limit benefits and remedies in cases arising on the high seas, and that those limits eliminate the discretion of courts to recognize a survival remedy under general maritime law. 117 F.3d at 1481-83. As evidence of this conscious congressional intent, the Dooley court first noted that the Jones Act — which was enacted at almost the same time as DOHSA — contains a survival remedy, while DOHSA does not. 117 F.3d at 1481-82. According to the Dooley court, the inclusion of a survival remedy in the Jones Act but not in DOHSA “scarcely seems inadvertent.” 117 F.3d at 1482. The Dooley court also cited language from Higginbotham where the Supreme Court allegedly indicated that DOHSA “expressed a congressional ‘judgment on such issues as ... survival, and damages.’ ” Dooley, 117 F.3d at 1482 (citing Higginbotham, 436 U.S. at 625, 98 S.Ct. at 2015). We agree with the Saavedra and Dooley courts that the availability of a general maritime law survival remedy turns on Congress’s intent in passing DOHSA. See Dooley, 117 F.3d at 1481 (“Judge-made general maritime law may not override ... congressional judgments, however ancient those judgments may happen to be.”). In this instance, though, we believe the Saavedra and Dooley courts misread Congress’s intent regarding the preclusive scope of DOHSA. Our analysis of Congress’s intent, of course, must begin with the plain language of DOHSA. See United States v. Oboh, 92 F.3d 1082, 1084-85 (11th Cir.1996) (en banc) (statutory analysis begins with plain language and if the language is unambiguous, the first step of analysis is also the last), cert. denied, — U.S. —, 117 S.Ct. 1257, 137 L.Ed.2d 337, and cert. denied, — U.S. -, 117 S.Ct. 1258, — L.Ed.2d —(1997). After searching the plain language of DOHSA we, like other courts, find that Congress made no express reference to the words “survival,” “survival remedy” or “survival action” anywhere in" }, { "docid": "22772611", "title": "", "text": "Line, Inc., 287 U. S. 367, 371 (1932). In The Harrisburg, 119 U. S. 199 (1886), this Court held that in the absence of an applicable state or federal statute, general federal maritime law did not afford a wrongful death cause of action to the survivors of individuals killed on the high seas, or waters navigable from the sea. It reasoned that because the common law did not recognize a civil action for injury which resulted in death on the land, no different rule should apply with respect to maritime deaths. Unable to tolerate this archaism, some courts began to allow recovery for deaths within state territorial waters if an applicable state statute permitted such recovery. See, e..g., The City of Norwalk, 55 F. 98, 103-108 (SDNY 1893) (state wrongful death statute may validly be applied to “maritime affairs within the state limits”), aff’d, 61 F. 364, 367-368 (CA2 1894) (application of state wrongful death statute to accident in state territorial waters valid “in the absence of any regulation of the subject by congress”). See also Steamboat Co. v. Chase, 16 Wall. 522 (1873). In an attempt to alleviate the harshness of the rule of The Harrisburg, this Court also recognized in The Hamilton, 207 U. S. 398 (1907), that state wrongful death statutes could, in some limited circumstances, be applied to fatal accidents occurring on the high seas. In The Hamilton, the Court held that where the statutes of the United States enabled the owner of a vessel to transfer its liability to a fund and to claim the exclusive jurisdiction of admiralty, and where that fund was being distributed, a Delaware citizen’s claim under Delaware law against another citizen of Delaware for wrongful death on the high seas would be recognized in admiralty. The Court noted that “[i]n such circumstances all claims to which the admiralty does not deny existence must be recognized whether admiralty liens or not.” Id., at 406. The Hamilton has sometimes been understood to endorse a broader application of state law on the high seas than its holding suggested. Some courts came to rely" }, { "docid": "22772616", "title": "", "text": "Laws, 36 Colum. L. Rev. 406 (1936). In sum, for all practical purposes, from the date of The Harrisburg until the passage of DOHSA in 1920, “there was no remedy for death on the high seas caused by breach of one of the duties imposed by federal maritime law.” Moragne v. States Marine Lines, Inc., 398 U. S., at 393. It was in this atmosphere that Congress considered legislation designed to provide a uniform and effective wrongful death remedy for survivors of persons killed on the high seas. See id., at 398, 401; Wilson v. Transocean Airlines, supra, at 88-90. In 1920, Congress enacted DOHSA, in which it finally repudiated the rule of The Harrisburg for maritime deaths occurring beyond state territorial waters by providing for a federal maritime remedy for wrongful deaths more than three miles from shore. DOHSA limits the class of beneficiaries to the decedent’s “wife, husband, parent, child, or dependent relative,” 46 U. S. C. §761, establishes a 3-year statute of limitations period, § 763a, allows a suit filed by the victim to continue as a wrongful death action if the victim dies of his injuries while suit is pending, § 765, provides that contributory negligence will not bar recovery, § 766, and declares that “recovery . . . shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought. ...” § 762. As this Court explained in Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 621-622 (1978): “In the half century between 1920 and 1970, deaths on the high seas gave rise to federal suits under DOHSA, while those in territorial waters were largely governed by state wrongful-death statutes, [the primary exception being survivor’s suits for wrongful death under the Jones Act, which gives a remedy no matter where the wrong takes place.] DOHSA brought a measure of uniformity and predictability to the law on the high seas, but in territorial waters, where The Harrisburg made state law the only source of a wrongful-death remedy, the continuing impact of that decision produced uncertainty" }, { "docid": "22772618", "title": "", "text": "and incongruity. The reasoning of The Harrisburg, which was dubious at best in 1886, became less and less satisfactory as the years passed. “In 1970, therefore, the Court overruled The Harrisburg. In Moragne v. States Marine Lines, Inc., 398 U. S. 375, the Court held that a federal remedy for wrongful death does exist under general maritime law. The case concerned a death in Florida’s territorial waters. The defendant argued that Congress, by limiting DOHSA to the high seas, had evidenced an intent to preclude federal judicial remedies in territorial waters. The Court concluded, however, that the reason Congress confined DOHSA to the high seas was to prevent the Act from abrogating, by its own force, the state remedies then available in state waters. Id., at 400.” (Footnotes omitted.) Subsequently, the Court confronted some of the various subsidiary questions concerning the Moragne federal death remedy in Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573 (1974), in which it was held that awards in a Moragne-based suit could include compensation for loss of support and services, for funeral expenses, and for loss of society, but not for mental anguish. Finally, in Higginbotham, the Court ruled that the nonpecuniary loss standard provided by DOHSA controlled on the high seas, and could not be supplemented by the measure of damages recognized in Gaudet for Moragne causes of action. In so doing, the Court concluded: “We realize that, because Congress has never enacted a comprehensive maritime code, admiralty courts have often been called upon to supplement maritime statutes. The Death on the High Seas Act, however, announces Congress’ considered judgment on such issues as the beneficiaries, the limitations period, contributory negligence, survival, and damages .... The Act does not address every issue of wrongful-death law . . . but when it does speak directly to a question, the courts are not free to 'supplement’ Congress’ answer so thoroughly that the Act becomes meaningless.” 436 U. S., at 625. With this background, we now proceed to the question at hand: whether the DOHSA measure of recovery may be sup plemented by the remedies provided" }, { "docid": "21277332", "title": "", "text": "be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued. 46 U.S.C. app. § 761(a). In enacting DOHSA, Congress repudiated the preexisting rule in The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), that no federal statute or general federal maritime law existed that afforded a wrongful death cause of action to the survivors of persons killed beyond state territorial waters. See The Hamilton, 207 U.S. 398, 404-05, 28 S.Ct. 133, 134-35, 52 L.Ed. 264 (1907) (pre-DOHSA case applying state wrongful death statutes to deaths on the high seas). DOHSA was intended to remedy “[t]he void that existed in maritime law up until 1920[:] the absence of any remedy for wrongful death on the high seas[.]” Moragne, 398 U.S. at 398, 90 S.Ct. at 1786 (overruling The Harrisburg); see also H.R.Rep. No. 674, 66th Cong., 2d Sess., 3-4 (1920). Whether DOHSA may be invoked against a foreign state whose immunity has been abrogated under the FSIA is evidently an issue of first impression. The Court is unaware of a single case in which a foreign state was found liable in wrongful death under DOHSA, and no court has directly addressed whether such claims are cognizable. To answer this question, the Court begins with the plain text of the statute. By its terms, DOHSA is limited to circumstances where death stems from a “wrong ful act, neglect or default” which “occur[red] on the high seas beyond a marine league from the shore of any State.46 U.S.C. app. § 761. The class of defendants is limited to “the vessel, person, or corporation which would have been liable if death had" }, { "docid": "22731054", "title": "", "text": "S. 199 (1886), this Court held that maritime law does not afford a cause of action for wrongful death. The Court of Appeals affirmed. This Court overruled The Harrisburg. After questioning whether The Harrisburg was a proper statement of the law even in 1886, the Court set aside that issue because a “development of major significance ha[d] intervened.” Moragne, supra, at 388. Specifically, the state legislatures and Congress had rejected wholesale the rule against wrongful death. Every State in the Union had enacted a wrongful death statute. In 1920, Congress enacted two pieces of legislation creating a wrongful death action for most maritime deaths. The Jones Act, 41 Stat. 1007, as amended, 46 U. S. C. App. §688, through incorporation of the Federal Employers’ Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. §§ 51-59, created a wrongful death action in favor of the per sonal representative of a seaman killed in the course of employment. The Death on the High Seas Act (DOHSA), 41 Stat. 537, 46 U. S. C. App. §§761, 762, created a similar action for the representative of anyone killed on the high seas. These statutes established an unambiguous policy in abrogation of those principles that underlay The Harrisburg. Such a policy is “to be given its appropriate weight not only in matters of statutory construction but also in those of deci-sional law.” Moragne, supra, at 391. Admiralty is not created in a vacuum; legislation has always served as an important source of both common law and admiralty principles. 398 U. S., at 391, 392, citing Landis, Statutes and the Sources of Law, in Harvard Legal Essays 213, 214, 226-227 (R. Pound ed. 1934). The unanimous legislative judgment behind the Jones Act, DOHSA, and the many state statutes created a strong presumption in favor of a general maritime wrongful death action. But legislation sends other signals to which an admiralty court must attend. “The legislature does not, of course, merely enact general policies. By the terms of a statute, it also indicates its conception of the sphere within which the policy is to" }, { "docid": "22769318", "title": "", "text": "Mr. Justice Stevens delivered the opinion of the Court. This case involves death on the high seas. The question is whether, in addition to the damages authorized by federal statute, a decedent’s survivors may also recover damages under general maritime law. The United States Court of Appeals for the Fifth Circuit, disagreeing with the First Circuit, held that survivors may recover for their “loss of society,” as well as for their pecuniary loss. We reverse. Petitioner used a helicopter in connection with its oil drilling operations in the Gulf of Mexico about 100 miles from the Louisiana shore. On August 15, 1967, the helicopter crashed outside Louisiana’s territorial waters, killing the pilot and three passengers. In a suit brought by the passengers’ widows, in their representative capacities, the District Court accepted admiralty jurisdiction and found that the deaths were caused by petitioner’s negligence. The court awarded damages equal to the pecuniary losses suffered by the families of two passengers. Although the court valued the two families’ loss of society at $100,000 and $155,000, it held that the law did not authorize recovery for this loss. The Court of Appeals reversed, holding that the plaintiffs were entitled to claim damages for loss of society. We granted certiorari limited to this issue. 434 U. S. 816. I In 1877, the steamer Harrisburg collided with a schooner in Massachusetts coastal waters. The schooner sank, and its first officer drowned. Some five years later, his widow brought a wrongful-death action against the Harrisburg. This Court held that admiralty afforded no remedy for wrongful death in the absence of an applicable state or federal statute. The Harrisburg, 119 U. S. 199. Thereafter, suits arising out of maritime fatalities were founded by necessity on state wrongful-death statutes. See, e. g., The Hamilton, 207 U. S. 398. In 1920, Congress repudiated the rule of The Harrisburg for maritime deaths occurring beyond the territorial waters of any State. It passed the Death on the High Seas Act (hereinafter sometimes DOHSA), creating a remedy in admiralty for wrongful deaths more than three miles from shore. This Act limits the" }, { "docid": "10008391", "title": "", "text": "Zicherman could recover for them decedents’ pre-death pain and suffering, as KAL had not raised this issue in its petition for certiorari. See id., at 230, n. 4. After the Zicherman decision, KAL again moved to dismiss all of petitioners’ claims for nonpecuniary damages. The District Court granted this motion, holding that United States law (not South Korean law) governed these cases; that DOHSA provides the applicable United States law; and that DOHSA does not permit the recovery of nonpecuniary damages — including petitioners’ claims for their decedents’ pre-death pain and suffering. In re Korean Air Lines Disaster of Sept. 1, 1983, 935 F. Supp. 10, 12-15 (1996). On appeal, petitioners argued that, although DOHSA does not itself permit recovery for a decedent’s pre-death pain and suffering, general maritime law provides a survival action that allows a decedent’s estate to recover for injuries (including pre-death pain and suffering) suffered by the decedent. The Court of Appeals rejected this argument and affirmed. In re Korean Air Lines Disaster of Sept. 1, 1983, 117 F. 3d 1477 (CADC 1997). Assuming, arguendo, that there is a survival cause of action under general maritime law, the court held that such an action is unavailable when the death is on the high seas: “For deaths on the high seas, Congress decided who may sue and for what. Judge-made general maritime law may not override such congressional judgments, however ancient those judgments may happen to be. Con gress made the law and it is up to Congress to change it.” Id., at 1481. We granted certiorari, 522 U. S. 1038 (1998), to resolve a Circuit split concerning the availability of a general maritime survival action in cases of death on the high seas. Compare, e. g., In re Korean Air Lines Disaster, 117 F. 3d, at 1481, with Gray v. Lockheed Aeronautical Systems Co., 125 F. 3d 1371, 1385 (CA11 1997). II Before Congress enacted DOHSA in 1920, the general law of admiralty permitted a person injured by tortious conduct to sue for damages, but did not permit an action to be brought when the person" }, { "docid": "6004533", "title": "", "text": "waters. First, Yamaha dealt only with wrongful death actions and has no relevance to personal injury actions. Second, the historical basis for wrongful death actions in admiralty is entirely separate from that for personal injuries, quoting from Gilmore And Black, The Law Of Admiralty, Second Edition, Chapter VI, § 6-29: In the [sic] Harrisburg the Supreme Court held that no cause of action for wrongful death was provided by the general maritime law. In The Hamilton, which involved a high seas collision between ships owned by Delaware corporations, the Court held that the gap in the maritime law created by The Harrisburg could be filled by allowing a recovery for wrongful death under a statute of the State of Delaware. Then or later statutes providing recovery for wrongful death were enacted in all states. On March 30,1920, Congress enacted the Death on the High Seas Act (DOHSA) which provided a recovery for death “caused by wrongful act, neglect or default occurring on the high seas beyond a marine league from the shore of any State [Territory or dependency].” On June 5, 1920, Congress enacted the Jones Act which incorporated the wrongful death provisions of the Federal Employers’ Liability Act [FELA], DOHSA and the Jones Act, enacted almost simultaneously, were hopelessly inconsistent with each other both as to the nature of the wrongful death recovery and as to the classes of beneficiaries entitled to recover. From 1920 until 1970 the lower federal courts, with occasional help from the Supreme court, attempted to impose a degree of order on this statutory chaos. In 1970 the Supreme Court overruled The Harrisburg in Moragne v. States Marine Lines, Inc. and held, in a unanimous decision, that a remedy for wrongful death was provided by the general maritime law. (Footnotes omitted). Although Congress provided for remedies for wrongful death on the high seas (DOH-SA) and for wrongful death to seamen (The Jones Act), Congress has never provided a remedy for wrongful death to non-seamen in state territorial waters. Therefore, prior to Moragne, the admiralty courts looked to the state wrongful death actions to provide a" }, { "docid": "22769319", "title": "", "text": "that the law did not authorize recovery for this loss. The Court of Appeals reversed, holding that the plaintiffs were entitled to claim damages for loss of society. We granted certiorari limited to this issue. 434 U. S. 816. I In 1877, the steamer Harrisburg collided with a schooner in Massachusetts coastal waters. The schooner sank, and its first officer drowned. Some five years later, his widow brought a wrongful-death action against the Harrisburg. This Court held that admiralty afforded no remedy for wrongful death in the absence of an applicable state or federal statute. The Harrisburg, 119 U. S. 199. Thereafter, suits arising out of maritime fatalities were founded by necessity on state wrongful-death statutes. See, e. g., The Hamilton, 207 U. S. 398. In 1920, Congress repudiated the rule of The Harrisburg for maritime deaths occurring beyond the territorial waters of any State. It passed the Death on the High Seas Act (hereinafter sometimes DOHSA), creating a remedy in admiralty for wrongful deaths more than three miles from shore. This Act limits the class of beneficiaries to the decedent’s “wife, husband, parent, child, or dependent relative,” establishes a two-year period of limitations, allows suits filed by the victim to continue as wrongful-death actions if the victim dies of his injuries while suit is pending, and provides that contributory negligence will not bar recovery. With respect to damages, the statute declares: “The recovery . . . shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought . . . .” In the half century between 1920 and 1970, deaths on the high seas gave rise to federal suits under DOHSA, while those in territorial waters were largely governed by state wrongful-death statutes. DOHSA brought a measure of uniformity and predictability to the law on the high seas, but in territorial waters, where The Harrisburg made state law the only source of a wrongful-death remedy, the continuing impact of that decision produced uncertainty and incongruity. The reasoning of The Harrisburg, which was dubious at best in 1886, became" }, { "docid": "10008398", "title": "", "text": "reason, it cannot be contended that DOHSA has no bearing on survival actions; rather, Congress has simply chosen to adopt a more limited survival provision. Indeed, Congress did so in the same year that it incorporated into the Jones Aet, which permits seamen injured in the course of their employment to recover damages for their injuries, a survival action similar to the one petitioners seek here. See Act of June 5,1920, §33, 41 Stat. 1007 (incorporating survival action of the Federal Employers’ Liability Act, 45 U. S. C. § 59). Even in the exercise of our admiralty jurisdiction, we will not upset the balance struck by Congress by authorizing a cause of action with which Congress was certainly familiar but nonetheless declined to adopt. In sum, Congress has spoken on the availability of a survival action, the losses to be recovered, and the beneficiaries, in cases of death on the high seas. Because Congress has chosen not to authorize a survival action for a decedent’s pre-death pain and suffering, there can be no general maritime survival action for such damages. The judgment of the Court of Appeals is Affirmed. We later rejected this rule in Moragne v. States Marine Lines, Inc., 398 U. S. 375, 408-409 (1970), by overruling The Harrisburg, 119 U. S. 199 (1886), and holding that a federal remedy for wrongful death exists under general maritime law. In Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573, 574 (1974), we further held that such wrongful-death awards could include compensation for loss of support and services and for loss of society. Accordingly, we need not decide whether general maritime law ever provides a survival action." }, { "docid": "6004532", "title": "", "text": "to them the remedies provided in Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). In addition, although such plaintiffs cannot recover punitive damages for simple negli gence, they may recover punitive damages upon a showing of “intentional or wanton and reckless conduct” on the part of defendants amounting to “a conscious disregard of the rights of others.” CEH, Inc. v. F/V Seafarer, 70 F.3d 694, 699 (1st Cir.1995). This is because the standard of liability necessary for the recovery of punitive damages is governed by admiralty law. Alabama law provides only the remedy which under Yamaha is now available to these wrongful death claimants in admiralty. C. Appellants also contend that the district court erred in finding that the personal injury plaintiffs in this action may seek nonpeeuniary damages under the general maritime law for loss of society, loss of consortium, and punitive damages. We agree with Appellants’ contention. Appellees suggest that Yamaha somehow extended state law remedies to personal injury actions to non-seamen occurring in state territorial waters. First, Yamaha dealt only with wrongful death actions and has no relevance to personal injury actions. Second, the historical basis for wrongful death actions in admiralty is entirely separate from that for personal injuries, quoting from Gilmore And Black, The Law Of Admiralty, Second Edition, Chapter VI, § 6-29: In the [sic] Harrisburg the Supreme Court held that no cause of action for wrongful death was provided by the general maritime law. In The Hamilton, which involved a high seas collision between ships owned by Delaware corporations, the Court held that the gap in the maritime law created by The Harrisburg could be filled by allowing a recovery for wrongful death under a statute of the State of Delaware. Then or later statutes providing recovery for wrongful death were enacted in all states. On March 30,1920, Congress enacted the Death on the High Seas Act (DOHSA) which provided a recovery for death “caused by wrongful act, neglect or default occurring on the high seas beyond a marine league from the shore of any State" }, { "docid": "13396444", "title": "", "text": "of damages. The district court awarded two types: wrongful death damages and survival damages. Recognizing DOHSA as the exclusive basis for appellees’ wrongful death claims, the district court ruled appellees could recover damages for loss of support, loss of services, and funeral expenses. After finding the appellees had viable survival action claims under general maritime law, the district court ruled the appellees could recover damages for pain and suffering on the survival action claims. The district court awarded the following damages: loss of support to Gray’s wife ($1.5 million), to Hartman’s mother and wife ($1.2 million), and to Jennings’s mother ($600,000); loss of services to Gray’s wife ($300,000), to Hartman’s mother and wife ($300,000), and to Jennings’s mother ($175,000); pain and suffering to each appellee as the personal representative of her decedent’s estate ($50,-000 each). Lockheed challenges the district court’s ruling on damages on two grounds: (1) the availability of pain and suffering damages for appellees’ survival action claims and (2) the computation of damages. First, we consider whether the district court erred in awarding pain and suffering damages for appellees’ survival action claims under general maritime law. 1. Availability of pain and suffering damages Lockheed relies on the Supreme Court’s decisions in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978), and Zicherman v. Korean Air Lines Co., Ltd., — U.S.-, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996), as well as recent decisions in the Ninth and District of Columbia Circuits to support the proposition that general maritime law survival action claims and/or pain and suffering damages are unavailable when a death occurs on the high seas. See Saavedra v. Korean Air Lines Co., Ltd., 93 F.3d 547, 554 (9th Cir.) (“because DOHSA does not allow recovery for nonpecuniary damages, we cannot ‘supplement’ Congress’ remedy, allowing a general maritime survival action for nonpecuniary damages, including ... pre-death pain and suffering”), cert. denied, — U.S.-, 117 S.Ct. 584, 136 L.Ed.2d 514 (1996); Dooley v. Korean Air Lines Co., Ltd. (In re Korean Air Lines Disaster of September 1, 1988), 117 F.3d 1477, 1481-83 (D.C.Cir.1997)" }, { "docid": "10008392", "title": "", "text": "(CADC 1997). Assuming, arguendo, that there is a survival cause of action under general maritime law, the court held that such an action is unavailable when the death is on the high seas: “For deaths on the high seas, Congress decided who may sue and for what. Judge-made general maritime law may not override such congressional judgments, however ancient those judgments may happen to be. Con gress made the law and it is up to Congress to change it.” Id., at 1481. We granted certiorari, 522 U. S. 1038 (1998), to resolve a Circuit split concerning the availability of a general maritime survival action in cases of death on the high seas. Compare, e. g., In re Korean Air Lines Disaster, 117 F. 3d, at 1481, with Gray v. Lockheed Aeronautical Systems Co., 125 F. 3d 1371, 1385 (CA11 1997). II Before Congress enacted DOHSA in 1920, the general law of admiralty permitted a person injured by tortious conduct to sue for damages, but did not permit an action to be brought when the person was killed by that conduct. See generally R. Hughes, Handbook of Admiralty Law 222-223 (2d ed. 1920). This rule stemmed from the theory that a right of action was personal to the victim and thus expired when the victim died. Accordingly, in the absence of an Act of Congress or state statute providing a right of action, a suit in admiralty could not be maintained in the courts of the United States to recover damages for a person’s death. See The Harrisburg, 119 U. S. 199, 213 (1886); The Alaska, 130 U. S. 201, 209 (1889). Congress passed such a statute, and thus authorized recovery for deaths on the high seas, with its enactment of DOHSA. DOHSA provides a cause of action for “the death of a person . . . caused by wrongful act, neglect, or default occurring on the high seas,” §761; this action must be brought by the decedent’s personal representative “for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative,” ibid. The Act limits recovery-in such a" }, { "docid": "23553875", "title": "", "text": "remedy for wrongful death suffered on the high seas or in territorial waters, the Jones Act and DOHSA displaced a general maritime rule that denied any recovery for wrongful death. See 498 U. S., at 23-34. This Court, therefore, was called upon in Miles to decide whether these new statutes supported an expansion of the relief available under pre-existing general maritime law to harmonize it with a cause of action created by statute. The Court in Miles first concluded that the “unanimous legislative judgment behind the Jones Act, DOHSA, and the many state statutes” authorizing maritime wrongful-death actions supported the recognition of a general maritime action for wrongful death of a seaman. Id., at 24 (discussing Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970), which overruled The Harrisburg, 119 U. S. 199 (1886)). Congress had chosen to limit, however, the damages available for wrongful-death actions under the Jones Act and DOHSA, such that damages were not statutorily available for loss of society or lost future earnings. See Miles, 498 U. S., at 21, 31-32. The Court thus concluded that Congress’ judgment must control the availability of remedies for wrongful-death actions brought under general maritime law, id., at 32-36. The reasoning of Miles remains sound. As the Court in that case explained, “[w]e no longer live in an era when seamen and their loved ones must look primarily to the courts as a source of substantive legal protection from injury and death; Congress and the States have legislated extensively in these areas.” Id., at 27. Furthermore, it was only because of congressional action that a general federal cause of action for wrongful death on the high seas and in territorial waters even existed; until then, there was no general common-law doctrine providing for such an action. As a result, to determine the remedies available under the common-law wrongful-death action, “an admiralty court should look primarily to these legislative enactments for policy guidance.” Ibid. It would have been illegitimate to create common-law remedies that exceeded those remedies statutorily available under the Jones Act and DOHSA. See id., at 36" } ]

[ { "docid": "5511832", "title": "", "text": "Birmingham News, supra. Under Evans v. United Air Lines, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), the claims that stem from the illegal placement on a seniority list may be barred by time. Evans held that plaintiff could not obtain relief with respect to time-barred discriminatory acts on the ground that the “present effects of past discrimination” continued during the limitations period. Id. at 558. The Court emphasized that mere continuity of impact from prior discrimination does not, without more, justify relief under Title VII; rather “the critical question is whether any present violation exists.” Id. The seniority system involved in that ease was facially neutral in its operation; it presented no barrier based on sex at the time of the suit. Therefore, the Court held that United was entitled to treat its past act of discrimination as lawful after Evans failed to file a charge of discrimination within the proper time period. Fowler argues that Evans does not limit his claim because the promotional system in question represents a continuing violation of Title VII, the effect of which was to deny him the opportunity to work journeyman shifts while still an apprentice and thus he was denied equal pay and training opportunity. Assuming this argument has factual support, it is, when analyzed, nothing more than a contention that his placement on the priority list was discriminatorily assigned on the day he was hired and that the present effect of maintaining that seniority order perpetuates the effects of this past discrimination. He fails to claim, however, that The News engages in current discriminatory employment practices based on race. And he makes no showing that the seniority system used by The News is designed and maintained with an intentionally discriminatory purpose, a prerequisite for alleging a present violation of Title VII. See United States v. East Texas Motor Freight Systems, 564 F.2d 179 (5th Cir. 1977); Southbridge Plastics Division v. Local 759, United Rubberworkers, 565 F.2d 913 (5th Cir. 1978). Cf. James v. Stockham Valves & Fittings Co., 559 F.2d 310 (5th Cir. 1977), cert. denied, 434 U.S." } ]

[ { "docid": "6579410", "title": "", "text": "of the ADEA that began when Dresser refused to train them and continued until they were laid off or refused promotion. “ ‘To succeed under a continuing violation theory, [the plaintiffs] must demonstrate that the acts of alleged discrimination are part of an ongoing pattern of discrimination and that at least one of the alleged discrete acts of discrimination occurred within the relevant limitations period.’ ” Davidson, 953 F.2d at 1060 (quoting Young v. Will County Dep’t of Public Aid, 882 F.2d 290, 292 (7th Cir. 1989)); Stewart v. CPC Intern., Inc., 679 F.2d 117, 121 (7th Cir.1982) (“At least one discriminatory act must have occurred within the charge-filing period.”). This they failed to do. The plaintiffs do not allege any discrete acts of discrimination other than the refusal to train. As we have already explained, the layoffs (and failure to promote) are only consequences of Dresser’s earlier refusal to retrain and not independent discriminatory acts. The plaintiffs do not allege, nor does the record reveal, any discrete acts of discrimination between the February 1986 refusal to train and the layoffs in February 1987. “Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.” Ricks, 449 U.S. at 257, 101 S.Ct. at 504 (citing United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977)). This case is indistinguishable from the many cases that have found allegations of a discriminatory act leading, some time later, to termination of employment insufficient to establish a continuing violation. See, e.g., Ricks, 449 U.S. at 256-58, 101 S.Ct. at 503-04 (limitations period began to run when professor informed that he was denied tenure, not when his employment was terminated one year later); Davidson v. Indiana-American Water Works, 953 F.2d 1058 (7th Cir.1992) (limitations period began to run when employee was transferred to another department, not when she was “constructively discharged” four months later); Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2916, 115 L.Ed.2d 1079 (1991) (limitations period" }, { "docid": "23167868", "title": "", "text": "effects from an original violation. Collins v. United Airlines, Inc., 514 F.2d 594, 596 (9th Cir. 1975). Hence, continuing non-employment resulting from an original action is not a continuing violation. Id. Caulk’s statement reflects his desire to have taken a negative action against Ward had the opportunity arisen. Such a misanthropic desire does not constitute a discriminatory violation. Even if the wish had been acted upon, in order to show a “continuing violation” Ward would be required to demonstrate that Caulk’s desires perpetrated a subsequent, discriminatory refusal to hire. Delaware State College v. Ricks, - U.S. -, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). Accordingly, the district court did not err in determining that the statute of limitations began to run in 1975. 1. Title VII. Timely filing of a charge with the EEOC is a prerequisite to the commencement of suit under Title VII. Collins, supra, at 596. Title 42, U.S.C., § 2000e-5(d) requires that such charges arising from an employment practice be filed within 180 days of the practice’s occurrence. Ward filed his EEOC complaint more than two years after his termination. His suit is therefore barred by the statutory filing period. 2. 42 U.S.C. §§ 1981 and 1983. Title 42, U.S.C., §§ 1981 and 1983 contain no facial limitations periods. The relevant statute of limitations for federally created causes of action which do not provide their own filing periods is that of the state most connected with the action. Smith v. Cremins, 308 F.2d 187, 189 (9th Cir. 1962). California Code of Civil Procedure § 338(1) provides for a three-year limitations period for the filing of civil actions. Accordingly, both § 1981 and § 1983 actions arising in California have been limited to this three-year filing period. See, e. g., Cremins, supra, at 189 (§ 1983); Griffin v. Pacific Maritime Ass’n, 478 F.2d 1118, 1119 (9th Cir.), cert. den., 414 U.S. 859, 49 S.Ct. 69, 38 L.Ed.2d 109 (1973) (§ 1981). Plaintiff brought the instant action in 1979 based on 1975 activities. His § 1981 and § 1983 claims are accordingly barred by the statute of limitations." }, { "docid": "23524442", "title": "", "text": "do not continue into the present for the purposes of the “continuing violation” doctrine. As the Supreme Court has repeatedly advised us, our focus in determining whether an alleged civil rights violation is “continuing” is upon the issue whether a present violation still exists, not upon the present effect of a past employment decision. See Delaware State College v. Ricks, - U.S. -, -, 101 S.Ct. 498, 504, 66 L.Ed.2d 431, 440 (1980); United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). Absent special circumstances, a single act by an employer adverse to an employee’s interests, such as a discharge, layoff, or failure to transfer or promote, begins the running of the statute of limitations and the natural effects of the allegedly discriminatory act are not regarded as “continuing.” See, e. g., Nuss v. Pan Am. World Airways, Inc., 634 F.2d 1234 (9th Cir. 1980); Collins v. United Air Lines, Inc., 514 F.2d 594 (9th Cir. 1975); Griffin v. Pacific Maritime Association, 478 F.2d 1118 (9th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 69, 38 L.Ed.2d 109 (1973); Fowler v. Birmingham News Co., 608 F.2d 1055 (5th Cir. 1979). We see no special circumstances justifying a departure from the rule in this instance. While the adverse job references obviously would not have occurred but for London’s termination, they are not the sort of consequences which mutually and inevitably flow from a termination. They represent a separate form of alleged employment discrimination whose consequences would be different from those suffered as a result of a simple discharge. We hold that London’s claim of discriminatory discharge is time-barred. Turning to the question of whether London’s allegations of post-discharge conduct are cognizable, we observe that we now deal more with an issue of substantive law under § 1981 than with a purely procedural matter of statutes of limitations. As the parties have framed the issue on appeal, we must determine whether the allegations of London’s complaint state a violation of § 1981. We heed the admonition of the United States Supreme Court that a" }, { "docid": "22950478", "title": "", "text": "utilize a system that locks in the effects of past discriminatory hiring decisions; it is a very different thing to lock in a discriminatory method of making hiring decisions .... Nothing in Teamsters implies that by labelling a non-job-related system of employee selection a ‘merit’ system, an employer can avoid the command of Title VII that it henceforth select its workforce in a non-discriminatory fashion. Guardians III, supra, 633 F.2d at 253 (emphasis in original). Accordingly, we conclude that the City could be held liable under Title VII for its post-Act appointments based on the 1971 test. B. The 300-Day Limitation Defendants’ other principal challenge to the district court’s ruling under Title VII is based on the statute of limitations established by § 706(e) of the Act. That section provides that in order to maintain a suit under Title VII, a plaintiff must have filed a charge of discrimination with EEOC within 300 days of the alleged discriminatory act. 42 U.S.C. § 2000e-5(e) (1976). See, e. g., United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n.4, 97 S.Ct. 1885, 1887 n.4, 52 L.Ed.2d 571 (1977); Cates v. Trans World Airlines, Inc., 561 F.2d 1064 (2d Cir. 1977). The City’s last hirings based on the 1971 exam occurred on May 2, 1973, and there were no further hirings until after 1975. Plaintiffs’ first EEOC charge pertaining to defendants’ hiring practices was filed in October 1975. Defendants argue, therefore, that insofar as plaintiffs’ claims relate to the 1973 and earlier hirings, they are barred by the 300-day period of limitations. This contention takes an impermissibly myopic view of the nature of the City’s unlawful conduct. As a general matter, the mere continuation of a discriminatory act’s effects, when the act itself occurred prior to the pertinent limitations period, is not sufficient to support recovery under Title VII. United Air Lines, Inc. v. Evans, supra, 431 U.S. at 558, 97 S.Ct. at 1889. See also Delaware State College v. Ricks,-U.S.-, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). The act that constitutes the violation must be “still fresh” within the statutory period." }, { "docid": "19107390", "title": "", "text": "employees’ rights. See, e.g., McKenzie v. Sawyer, 684 F.2d 62, 72 (D.C.Cir.1982); Williams v. Owens-Illinois Inc., 665 F.2d 918, 924 (9th Cir.), cert. denied, 459 U.S. 971, 103 S.Ct. 302, 74 L.Ed.2d 283 (1982); Jewett v. ITT, 653 F.2d 89, 91 (3d Cir.), cert. denied, 454 U.S. 969, 102 S.Ct. 515, 70 L.Ed.2d 386 (1981); Rich v. Martin Marietta Corp., 522 F.2d 333, 348 & n. 15 (10th Cir.1975). However, a plaintiff may not use the continuing violation theory to challenge discrete actions that occurred outside the limitations period even though the impact of the acts continues to be felt. See United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). The courts generally have concluded that unconstitutional employment termination is a completed one-time violation, and that its natural subsequent effects do not give rise to application of the continuing violation doctrine. See, e.g., id.; Berry v. Board of Supervisors, 715 F.2d 971, 980 (5th Cir. 1983); Dumas v. Town of Mount Vernon, 612 F.2d 974, 977-78 (5th Cir.1980); Daughtry v. King’s Department Stores, Inc., 608 F.2d 906, 909 (1st Cir.1979); Collins v. United Air Lines, Inc., 514 F.2d 594, 596 (9th Cir.1975). In his complaint Pike alleges that defendants have continued to deny him reinstatement and a due process hearing, and have continued to maintain employment records reflecting that he was discharged for cause. These acts are the natural result of the original employment decision and are therefore not grounds for permitting Pike to challenge defendants’ time-barred conduct under the theory, of continuing violation. Pike also argues on appeal that he has alleged sufficient facts in his com plaint to state a new cause of action against defendants arising in 1981. He contends that the existence of the adverse employment records is a present violation of his constitutional rights. We cannot agree that merely maintaining these records is a present violation rather than the natural effect of his discharge. Pike also contends on appeal that one of the defendants, Powell, recently stated publicly that Pike’s discharge was justified, thereby depriving Pike of" }, { "docid": "23093080", "title": "", "text": "will participate in any gambling activity. This includes the operation of a gambling service, conducting or acting as an agent for a lottery or pool, conducting a game for money or property, or selling or purchasing a numbers slip or ticket. U.S. Postal Service Employee & Labor Relations Manual § 661.56. . The same postal inspector who had investigated Jensen’s activities uncovered significant evidence that Macaruso had been running a \"Super Bowl Pool.” On April 17, 1984, the post office issued a notice proposing to strip Macaruso of his position for violating section 661.56. One week later, however, the post office agreed, in the course of a grievance/arbitration proceeding, to reduce Macaruso’s penalty to a seven day suspension. . Because this case can be resolved on the paucity of appellant’s proffer, we need not speculate as to whether a discharge can ever form the basis of a continuing violation. We note, however, that a number of courts have concluded that a discharge cannot fill such a role. See Collins v. United Air Lines, Inc., 514 F.2d 594, 596 (9th Cir.1975); Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1234 (8th Cir.1975); cf. Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th Cir.) (“continuing violations are most likely to occur in the matter of placements or promotions”), cert. denied, 459 U.S. 971, 103 S.Ct. 302, 74 L.Ed.2d 283 (1982); see generally B. Schlei & P. Grossman, Employment Discrimination Law 397 & n. 35 (Supp.1989). A principle justification underlying these decisions stems from the fact that an employer is entitled to treat a past act as lawful after the employee fails to file a charge within the limitation period. See Evans, 431 U.S. at 558, 97 S.Ct. at 1889. Were a former employee permitted to challenge his dismissal on the basis of an allegedly ongoing discriminatory policy at any time, the limitation period would be rendered meaningless. See Hill v. AT & T Technologies, Inc., 731 F.2d 175, 179-80 (4th Cir.1984); Collins, 514 F.2d at 596. By the same token, it would seem that an employee who has been discharged would have" }, { "docid": "10798783", "title": "", "text": "Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977): A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences. This principle is fully applicable to pattern or practice actions. In the Teamsters opinion, handed down on the same day as United Air Lines, Inc. v. Evans, the Court said that an employer might defeat a plaintiff’s prima facie case by showing “that the claimed discriminatory pattern is a product of pre-Act hiring rather than unlawful post-Act discrimination.” 431 U.S. at 360, 97 S.Ct. at 1867. See also Hazelwood School District v. United States, supra, 433 U.S. at 309-10, 97 S.Ct. at 2742-2743. Under United Air Lines, Inc. v. Evans, acts prior to 180 days before the charge are the equivalent of “pre-Act hiring.” See Movement for Opportunity & Equality v. General Motors Corp., 622 F.2d 1235, 1245 (7 Cir. 1980); Patterson v. American Tobacco Co., 634 F.2d 744, 752 n.10 (4 Cir. 1980) (en banc), petition for cert. filed, 49 L.W. 3533 (Jan. 16, 1981); Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256 at 274 (2 Cir. 1981) . As best we can discern, at least 45 of the 83 EWIB inspectors classified as technical in 1977 had been appointed to that position prior to February, 1974. All 11 EWIB inspectors at the managerial level had originally been hired prior to the period of potential liability; since inspector experience was an important qualification for promotion to those jobs, it seems fair to assume that even if class members had been hired as inspectors after February 1974, they would not have been eligible for promotion to the five management posts filled that same year or to the three additional ones filled later. Hence," }, { "docid": "23524441", "title": "", "text": "in the federal courts. Rather, we sustain that portion of her complaint dealing with post-discharge conduct because she has therein stated a violation of § 1981 separate and apart from her allegation that she was discharged for discriminatory reasons. Accordingly, we affirm the dismissal of London’s charge of discriminatory discharge and will remand for further proceedings dealing with her post-discharge harassment allegations and her pendent state claim. For the purposes of our discussion here, we separate London’s allegations into two categories: first, the allegation of a discriminatory discharge as a separate category to itself, and second, the allegations of a pattern of discriminatory post-discharge conduct. As noted earlier, the allegation of a discriminatory discharge on its face falls outside the limitation period, while the allegations of post-discharge conduct appear to fall within the limitations period. Addressing ourselves first to the issue of whether London’s allegations of a continuing pattern of post-discharge conduct rescue the claim of discriminatory discharge from the statute of limitations, we conclude that London’s termination was a separate, discrete act whose effects do not continue into the present for the purposes of the “continuing violation” doctrine. As the Supreme Court has repeatedly advised us, our focus in determining whether an alleged civil rights violation is “continuing” is upon the issue whether a present violation still exists, not upon the present effect of a past employment decision. See Delaware State College v. Ricks, - U.S. -, -, 101 S.Ct. 498, 504, 66 L.Ed.2d 431, 440 (1980); United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). Absent special circumstances, a single act by an employer adverse to an employee’s interests, such as a discharge, layoff, or failure to transfer or promote, begins the running of the statute of limitations and the natural effects of the allegedly discriminatory act are not regarded as “continuing.” See, e. g., Nuss v. Pan Am. World Airways, Inc., 634 F.2d 1234 (9th Cir. 1980); Collins v. United Air Lines, Inc., 514 F.2d 594 (9th Cir. 1975); Griffin v. Pacific Maritime Association, 478 F.2d 1118 (9th Cir.)," }, { "docid": "22046054", "title": "", "text": "after that date. Miller, an experienced lawyer, has never alleged that he was unaware of his rights under the ADEA. However, he argues that since his termination was part of an ITT restructuring program that continued through 1982 the statute of limitations did not commence running as to him during the continuance of that program. We disagree. When employees are hired or refused employment pursuant to a continuous practice and policy of discrimination, the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it, Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 274 (2d Cir.1981), cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71 L.Ed.2d 847 (1982), provided such a continuing violation is clearly asserted both in the EEOC filing and in the complaint. However, a continuing violation may not be based on an employee’s having suffered from the effects of an earlier discriminatory act. Ricks, supra, 449 U.S. at 257, 101 S.Ct. at 503; United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). Thus, several courts have held that an employee who has been discharged pursuant to a discriminatory policy may not take advantage of later discriminatory acts against other employees for the purpose of postponing the running of the statutory period as to him on a continuing violation theory. Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th Cir.1982), modified on other grounds, 28 F.E.P. 1820 (1982), cert. denied, 459 U.S. 971, 103 S.Ct. 304, 74 L.Ed.2d 283 (1982); Woodburn v. LTV Aerospace Corp., 531 F.2d 750, 751 (5th Cir.1976); Malarkey v. Texaco Inc., 559 F.Supp. 117, 120-21 (S.D. N.Y.1982), aff'd on other grounds, 704 F.2d 674 (2d Cir.1983). We need not resolve that issue in the present case, however, for the reason that Miller did not assert in his EEOC complaint as the basis of his action a continuing violation extending beyond his discharge; on the contrary, he listed “April 1, 1979” as the date of the most recent violation in his signed charge" }, { "docid": "5270318", "title": "", "text": "that her claim should be considered timely because she is a victim of continuing discrimination. In Zipes v. Trans World Airlines, 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Supreme Court stated that “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Id. at 393, 102 S.Ct. at 1132 (footnote omitted). In the event a discrete act of discrimination does not form the basis for a discrimination charge, the doctrine of continuing discrimination may exempt a plaintiff from the strict time requirements of Title VII. The reason for this is “to provide a remedy for past actions which operate to discriminate against the complainant at the present time.” Olsen v. Rembrandt Printing Co., 511 F.2d 1228, 1234 (8th Cir.1975). No doubt ABC’s decision to terminate plaintiff’s employment continues to affect her, however, the critical question is not whether ABC’s past actions have current consequences. “[T]he emphasis should not be placed on mere continuity; the critical question is whether any present violation exists.” United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977) (emphasis supplied). To demonstrate a continuing violation a plaintiff must show “a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitations] period.” Valentino v. United States Postal Service, 674 F.2d 56, 65 (D.C.Cir.1982) (quoting B. Schlei & P. Grossman, Employment Discrimination Law 232 (1979)). See, e.g., Rich v. Martin Marietta Corp., 522 F.2d 333, 337 (10th Cir.1975) (“Generally, the statistics presented ... show blacks and Spanish-Americans to be concentrated ... where they tend not to be promoted”); Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 983 (D.C.Cir.1973) (Defendant “maintain[s] a practice of refusing to hire blacks ... ”); Corbin v. Pan Am World Airways, Inc., 432 F.Supp. 939, 944 (N.D.Cal.1977) (“Plaintiff’s claims of a repeated failure to promote and a denial of" }, { "docid": "5637288", "title": "", "text": "Dev., Fair Housing Act Design Manual: A Manual to Assist Designers and Builders in Meeting the Accessibility Requirements of the Fair Housing Act 22 (rev.1998). Plaintiffs and HUD confuse a continuing violation with the continuing effects of a past violation. “Termination” refers to “the termination of an alleged discriminatory housing practice.” The Supreme Court has “stressed the need to identify with care the specific [discriminatory] practice that is at issue.” Ledbetter v. Goodyear Tire & Rubber Co., — U.S. -, 127 S.Ct. 2162, 2167, 167 L.Ed.2d 982 (2007). Here, the practice is “a failure to design and construct,” which is not an indefinitely continuing practice, but a discrete instance of discrimination that terminates at the conclusion of the design-and-construction phase. This violation differs from the one Congress codified as “continuing” in light of Havens, where the claims were “based not solely on isolated incidents ..., but a continuing violation manifested in a number of incidents — including at least one ... that [wa]s asserted to have occurred within the [limitations] period.” 455 U.S. at 381, 102 S.Ct. 1114 (emphasis added). Put differently, “[a] continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.” Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir.1981) (citing Collins v. United Air Lines, Inc., 514 F.2d 594, 596 (9th Cir.1975)); see also Moseke v. Miller & Smith, Inc., 202 F.Supp.2d 492, 507 (E.D.Va.2002) (“[An] FHA non-compliant building which contains inaccessible features to disabled persons is more akin to a continuing effect rather than a continuing violation under the FHA.”). The Supreme Court last Term reiterated the distinction between a continuing violation and continual effects when it held that “current effects alone cannot breathe life into prior, unchanged discrimination; as we held in Evans, such effects in themselves have ‘no present legal consequences.’ ” Ledbetter, 127 S.Ct. at 2169 (quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977)). Although the ill effects of a failure to properly design and construct may continue to be felt decades after construction is complete," }, { "docid": "4984799", "title": "", "text": "the appraisal with Employee Relations Manager McGrath. Prior to the date Shell received notice of his EEOC charge, however, Womack admitted that he never advised anyone at Shell that his race was allegedly a factor in the 1977 appraisal. No facts support a finding that Dastugue either knew or should have known that Womack considered the 1977 appraisal racially biased. The record conclusively establishes that in 1977 Womack had knowledge of all the relevant facts. 9. For the purpose of the time limitations under 42 U.S.C. § 2000e-5(e), the proper focus is upon the date of the alleged discriminatory act, “not upon the time that the consequences of that act became most painful.” Delaware State College v. Ricks, - U.S. -, -, 101 S.Ct. 498, 505, 66 L.Ed.2d 431 (1980), citing Abramson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir. 1979). The record conclusively establishes that the alleged discriminatory act occurred in 1977 and that Womack’s EEOC charge was not filed until June 1979. 10. Womack cannot successfully contend that the denial of promotion was a “continuing violation;” i. e., the “present effect” of the alleged “past discrimination.” In United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), the Supreme Court held that a Title YII defendant “was entitled to treat [a] past act as lawful after [plaintiff] failed to file a [timely] charge of discrimination.” The Supreme Court stated: A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed.... [Separately considered, it is merely an unfortunate event in history which has no present legal consequences. 431 U.S. at 558, 97 S.Ct. at 1889. The Evans decision casts serious doubts upon the vitality of the “present effect” theory of a continuing violation: The “present effects of past discrimination” theory suffered a severe, if not mortal, blow in Evans. The majority opinion, by focusing on whether a current violation exists, appears to foreclose claims based solely upon the residual effects of discriminatory conduct not made" }, { "docid": "5637289", "title": "", "text": "102 S.Ct. 1114 (emphasis added). Put differently, “[a] continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.” Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir.1981) (citing Collins v. United Air Lines, Inc., 514 F.2d 594, 596 (9th Cir.1975)); see also Moseke v. Miller & Smith, Inc., 202 F.Supp.2d 492, 507 (E.D.Va.2002) (“[An] FHA non-compliant building which contains inaccessible features to disabled persons is more akin to a continuing effect rather than a continuing violation under the FHA.”). The Supreme Court last Term reiterated the distinction between a continuing violation and continual effects when it held that “current effects alone cannot breathe life into prior, unchanged discrimination; as we held in Evans, such effects in themselves have ‘no present legal consequences.’ ” Ledbetter, 127 S.Ct. at 2169 (quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977)). Although the ill effects of a failure to properly design and construct may continue to be felt decades after construction is complete, failing to design and construct is a single instance of unlawful conduct. Here, this occurred long before plaintiffs brought suit. Were we to now hold the contrary, the FHA’s statute of limitations would provide little finality for developers, who would be required to repurchase and modify (or destroy) buildings containing inaccessible features in order to avoid design- and-construction liability for every aggrieved person who solicits tenancy from subsequent owners and managers. Indeed, now that we have recognized tester standing, an aggrieved person wouldn’t even need to solicit tenancy, but merely observe the violation. See Smith, 358 F.3d at 1104. This is not what Congress provided in erecting a two-year statute of limitations for FHA design-and-construction claims. If Congress wanted to leave developers on the hook years after they cease having any association with a building, it could have phrased the statute to say so explicitly. Nor may we ignore the statute of limitations to help an aggrieved person who suffers from the effects of such violation decades after construction. See Boise Cascade Corp. v. U.S." }, { "docid": "19538824", "title": "", "text": "cases: An act done with discriminatory intent must have occurred within the limitations period. We have repeatedly held that the time to pursue an employment discrimination claim starts running when a discriminatory act occurs, and that a fresh limitations period does not start upon the occurrence of a later nondiscriminatory act-even if that later act carries forward the effects of the earlier discrimination. See, e.g., United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); Delaware State College v. Ricks, 449 U.S. 250, 257-258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981)(per curiam ); Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 907-908, 911, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989); National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 628, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007). Without mentioning this consistent line of precedent, the Court categorically declares that the limitations period for constructive discharge cases starts upon the employee's resignation, no matter when the last discriminatory act occurred. This effectively disposes of the discriminatory-intent requirement. Rather than jettison our precedent, I would hold that the limitations period for constructive discharge claims-like all other employment discrimination claims-starts running upon a discriminatory act of the employer. But I would also hold that an employee's resignation can, in many cases, be considered a discriminatory act of the employer. This is so where an employer subjects an employee to intolerable working conditions with the discriminatory intent to force the employee to resign . In these circumstances, the employee's consequent resignation is tantamount to an intentional termination by the employer, and so gives rise to a fresh limitations period just as a conventional termination would. Absent such intent, however, the resignation is not an independent discriminatory act but merely a delayed consequence of earlier discrimination. The resignation may be a basis for enhancing damages in a claim brought on the underlying discrimination, but" }, { "docid": "22846080", "title": "", "text": "to deny him tenure. See id. Under the college’s policy, junior faculty who are denied tenure are offered a “terminal” contract to teach one additional year. When that contract expires, so too does the employment relationship. The Court recognized that the statute of limitations commenced when Ricks was notified that he would not receive tenure, and then stated, “[i]t is sim ply insufficient for Ricks to allege that his termination ‘gives present effect to the past illegal act and therefore perpetuates the consequences of forbidden discrimination.’ ” See id. at 252-53, 101 S.Ct. 498. In discussing Ricks, this court stated that “Ricks, on learning of the denial of tenure, would have notice of all allegedly wrongful acts that he later sought to challenge, [and] the statute of limitations must be deemed to commence at that time.” Hoesterey v. City of Cathedral City, 945 F.2d 317, 319 (9th Cir.1991). We noted that “the termination of Ricks’ employment was not an independent discriminatory act, but merely the ‘delayed, but inevitable, consequence of the denial of tenure.’” Id.; see also London v. Coopers & Lybrand, 644 F.2d 811, 816 (9th Cir.1981) (“Absent special circumstances, a single act by an employer adverse to an employee’s interests, such as a discharge, layoff, or failure to transfer or promote, begins the running of the statute of limitations and the natural effects of the allegedly discriminatory act are not regarded as ‘continuing.’ ”). Likewise, Knox had notice of all the wrongful acts she wished to challenge at the time of the suspension letter because the letter informed her that she was permanently denied all visitation or mail privileges. See, e.g. Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981) (holding that a wrongful termination claim accrued at the time the plaintiff received notice of the termination, not at the time of the termination itself); see also Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir.1994) (“[T]he purpose of permitting a plaintiff to maintain a cause of action on the continuing violation theory is to permit the inclusion of acts" }, { "docid": "17987804", "title": "", "text": "until plaintiff finally retired in 1977. This position, however, has consistently been rejected for the reason that while employees who have been demoted continue to feel the effects of that demotion in terms of reduced salary and benefits, as plaintiff alleges is the situation at bar, “the critical question is whether any present violation exists.” United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977) (emphasis in original); accord, Ricks, supra, 449 U.S. at 257-58, 101 S.Ct. at 504 (“[m]ere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination”). No such present violation is alleged in the complaint, which states the three acts allegedly constituting discrimination — the 1972 demotion, the 1976 demotion, and plaintiff’s retirement — separately and without any attempt at connecting them. Moreover, the requisite present violation is not found in the reference contained in the December 1975 appraisal of plaintiff in which plaintiff is characterized as “nonpromotable due to age.” Assuming that that statement means what it says, a refusal to promote due to age more than three years after a demotion does not revive the earlier claim. See, e.g., Downey, supra, 649 F.2d at 305-05; Goldman v. Sears, Roebuck & Co., 607 F.2d 1014 (1st Cir. 1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980); Marshall v. American Motors Corp., 475 F.Supp. 875 (E.D.Mich.1979) (“although some effects may still exist as the result of discriminatory discharges or demotions, if there is a reasonable ascertainable date on which the act occurred, that is the day on which the statute began to run”). See generally Milton v. Weinberger, 645 F.2d 1070, 1075 (D.C.Cir.1981). Any other result would run afoul of the purpose of the limitations period as enunciated by the Supreme Court in Ricks, supra, 449 U.S. at 256-57, 101 S.Ct. at 503-04: “The limitations periods, while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect employers from the burden of defending claims arising from employment decisions" }, { "docid": "16102078", "title": "", "text": "§ 213.111(1). Failure to meet these deadlines bars the claim. See Hill v. John Chezik Imports, 797 S.W.2d 528, 529 (Mo.App.1990); Missouri Pac. R.R. Co. v. Missouri Comm’n on Human Rights, 606 S.W.2d 496, 502 (Mo.App.1980). In cases construing the analogous requirements of Title VII, federal courts have concluded that a discrete, adverse employment action, such as a discharge, layoff, or failure to promote, “constitutes a completed act at the time it occurred.” Boge v. Ringland-Johnson-Crowley Co., 976 F.2d 448, 451 (8th Cir.1992). The time for filing an administrative charge or commencing a lawsuit runs from the date of such a discriminatory act, even if its effects on the injured employee are long-lasting. See Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 167 (8th Cir.1995) (en banc). “Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.” Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980). Thus, if such an act is not timely challenged, the right to relief expires: A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977), quoted favorably in Missouri Pac. R.R., 606 S.W.2d at 501. Applying this principle, we agree with the district court that Gipson’s challenges to discrete, adverse employment actions are time-barred under the MHRA. His claim for denied raises is barred because the denials occurred more than 180 days before he filed his Charge. The claim for the alleged discriminatory demotion and assignment to a rural sales territory is barred because these actions occurred in March 1989, more than two years before he filed this lawsuit. The claim for" }, { "docid": "6048401", "title": "", "text": "the two-year limitations period. In the district court Zotos argued that her transfer claim was timely filed under the three-year limitations period for willful violations, asserting that the transfer was part of a continuing violation, which culminated in her discharge. Her argument is without merit. Zotos’ transfer was “a discrete, adverse employment action, such as a discharge, layoff, or failure to promote, [and] ‘constitute[d] a completed act at the time it occurred.’” Gipson v. KAS Snacktime Co., 83 F.3d 225, 229 (8th Cir.1996) (quoting Boge v. Ringland-Johnson-Crowley Co., 976 F.2d 448, 451 (8th Cir.1992)). Under the preamended ADEA, “[t]he time for ... commencing a lawsuit r[an] from the date of such a discriminatory act, even if its effects on the injured employee are long-lasting.” Id. “Thus, if such an act is not timely challenged, the right to relief expires!.]” Id. Contrary to Zotos’ belief, “[a] continuing violation ... does not excuse an aggrieved employee from complying with the applicable statutes of limitations.” Scott v. St. Paul Postal Serv., 720 F.2d 524, 525 (8th Cir.1983) (per curiam), cert. denied, 465 U.S. 1083, 104 S.Ct. 1453, 79 L.Ed.2d 770 (1984). “Rather, it simply allows an employee to include in his initial complaint ... allegedly discriminatory acts that occurred before the limitations period, provided that at least one of the acts complained of falls within the limitations period.” Id. In other words: A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequence. Gipson, 83 F.3d at 229 (quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977)). We also remind Zotos that “although [a] willful act violate[s] the ADEA, that is not the same as a willful violation of the statute.” Jarvis v. Sauer Sundstrand Co., 116 F.3d 321," }, { "docid": "23524443", "title": "", "text": "cert. denied, 414 U.S. 859, 94 S.Ct. 69, 38 L.Ed.2d 109 (1973); Fowler v. Birmingham News Co., 608 F.2d 1055 (5th Cir. 1979). We see no special circumstances justifying a departure from the rule in this instance. While the adverse job references obviously would not have occurred but for London’s termination, they are not the sort of consequences which mutually and inevitably flow from a termination. They represent a separate form of alleged employment discrimination whose consequences would be different from those suffered as a result of a simple discharge. We hold that London’s claim of discriminatory discharge is time-barred. Turning to the question of whether London’s allegations of post-discharge conduct are cognizable, we observe that we now deal more with an issue of substantive law under § 1981 than with a purely procedural matter of statutes of limitations. As the parties have framed the issue on appeal, we must determine whether the allegations of London’s complaint state a violation of § 1981. We heed the admonition of the United States Supreme Court that a complaint should not be dismissed for failure to state a claim “... unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.\" Conley v. Gibson, 355 U.S. 41, 45, 46, 78 S.Ct. 99, 101, 102, 2 L.Ed.2d 80 (1957). Paragraph Seven of the Second Amended Complaint alleges, in effect, two types of discriminatory conduct. Allegations of the preparation and dissemination of negative performance reports, and of informing other accounting firms that London was a “troublemaker” involve the giving of adverse employment references to potential employers. Allegations that Coopers & Lybrand had informed both the U.S.C. placement office and potential employers that London had filed discrimination charges involve retaliation for filing such charges. We must consider whether either class of activities is cognizable under § 1981. There is little question that the dissemination of adverse employment references can constitute a violation of Title VII if motivated by discriminatory intent. In Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711 (D.C.Cir.1978)," }, { "docid": "5270319", "title": "", "text": "emphasis should not be placed on mere continuity; the critical question is whether any present violation exists.” United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977) (emphasis supplied). To demonstrate a continuing violation a plaintiff must show “a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitations] period.” Valentino v. United States Postal Service, 674 F.2d 56, 65 (D.C.Cir.1982) (quoting B. Schlei & P. Grossman, Employment Discrimination Law 232 (1979)). See, e.g., Rich v. Martin Marietta Corp., 522 F.2d 333, 337 (10th Cir.1975) (“Generally, the statistics presented ... show blacks and Spanish-Americans to be concentrated ... where they tend not to be promoted”); Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 983 (D.C.Cir.1973) (Defendant “maintain[s] a practice of refusing to hire blacks ... ”); Corbin v. Pan Am World Airways, Inc., 432 F.Supp. 939, 944 (N.D.Cal.1977) (“Plaintiff’s claims of a repeated failure to promote and a denial of equal pay involve ongoing aspects of [a current] employer-employee relationship”). Completed acts, such as termination through discharge or resignation, Olson v. Rembrandt Printing Co., 511 F.2d at 1234; a job transfer, Younger v. Glamorgan Pipe & Foundry Co., 310 F.Supp. 195, 197 (W.D.Va.1969); or discontinuance of a particular job assignment, Gordon v. Baker Protective Services, Inc., 358 F.Supp. 867, 869 (N.D.Ill.1973), are not acts of a “continuing” nature. A plaintiff may not circumvent Title VII’s stringent time limits merely by characterizing a completed act of discrimination as a “continuing violation,” such as plaintiff has alleged. Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 503, 66 L.Ed.2d 431 (1980). Conclusory allegations of discrimination are insufficient to satisfy the requirements of Fed.R. Civ.P. 56(e) that the party opposing summary judgment must set forth specific facts demonstrating that a genuine issue of material fact exists. See L & L Started Pullets, Inc. v. Gourdine, 762 F.2d 1 (2d Cir.1985); Meiri v. Dacon, 759 F.2d 989 (2d Cir.1985); Quarles v. General Motors Corp. (Motors Holding" } ]

[ { "docid": "6207251", "title": "", "text": "failure to state a claim on which relief may be granted; the district judge wrote that he was dismissing the suit under Fed. R.Civ.P. 12(b)(1) for lack of jurisdiction. Neither rule supports the disposition. The statute of limitations is an affirmative defense. Complaints need not anticipate or plead around affirmative defenses, Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980), so there is no problem under Rule 12(b)(6). Luckett v. Rent-A-Center, Inc., 53 F.3d 871, 873 (7th Cir.1995); Tregenza v. Great American Communications Co., 12 F.3d 717, 718-19 (7th Cir.1993). Neither does a statute of limitations affect the district court’s jurisdiction. See, e.g., Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Jurisdiction is supplied by 28 U.S.C. § 1331, because a claim under Bivens presents a federal question. But when a complaint shows that the time for litigation has passed, judgment on the pleadings may be entered under Fed.R.Civ.P. 12(c). The Leavells had the opportunity for response that Rule 12(c) requires, and the decision does not depend on any document outside the pleadings, so the district court’s disposition is not procedurally defective even though the judge should have cited Rule 12(c) rather than Rule 12(b)(1). Federal law defines the accrual of a Bivens claim. Kronisch v. United States, 150 F.3d 112, 123 (2d Cir.1998); Uboh v. Reno, 141 F.3d 1000 (11th Cir.1998). Under federal law, the time begins to run when the plaintiff knows that he has been injured. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). For this purpose injury means both current and future harm. A person fired from his job effective in six months is injured (and the clock starts to run) on the date of the discharge, not six months later when the employment ends. Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). The possibility that internal appeals may mitigate or avoid the injury does" } ]

[ { "docid": "22272727", "title": "", "text": "is not what happened. The final decision terminated the suit. In civil litigation, the final resolution of one suit is conclusive in a successor, whether or not that decision was correct. If Gleash wanted to contest the validity of the district judge’s decision — either on the merits or on the ground that he should have been allowed to re-plead — he had to appeal. One potential response might be that claim preclusion is an affirmative defense, which judges should not entertain when conducting pre-service screening under §§ 1915(e)(2)(B) and 1915A. Briefing this question at our request, Gleash’s counsel commendably replied that a court that has discretion to raise affirmative defenses on its own after service, see Arizona v. California, 530 U.S. 392, 412-13, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000), has the same discretion before service. Both § 1915(e)(2)(B)(iii) and § 1915A(b)(2) require the judge to consider official immunity, which is an affirmative defense. See Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). This implies that other affirmative defenses are open too. So we held in Walker v. Thompson, 288 F.3d 1005, 1009-10 (7th Cir.2002), adding that the judge should invoke an affirmative defense (on behalf of potential defendants who have not had a chance to do so themselves) only if it is so plain from the language of the complaint and other documents in the district court’s files that it renders the suit frivolous. That standard was met here, because all of the proceedings in the first suit occurred before the same judge, who therefore did not need to guess what those records would show. Under the circumstances there was no point to serving the defendants with process, forcing them to engage counsel, and then waiting for the inevitable motion to dismiss on preclusion grounds. It was sensible to stop the suit immediately, saving time and money for everyone concerned. See Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Only one way out" }, { "docid": "10314031", "title": "", "text": "rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.” 126 S.Ct. at 405 (quoting Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (internal quotation marks omitted)). In the past, this court has described the exhaustion requirement found in the IDEA as a claims-processing rule, pointing out that “lack of exhaustion usually is waivable, as lack of jurisdiction is not.” Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 991 (7th Cir.1996). A number of consequences flow from this basic fact. First, the district court should not have turned to fed. R. Civ. P. 12(b)(1) when it decided the motion to dismiss. A failure to exhaust is normally considered to be an affirmative defense, see, e.g., Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.2002), and we see no reason to treat it differently here. That means that the earliest possible time to consider it would normally be after the answer has been filed, if it is possible to decide the issue through a Rule 12(c) motion for judgment on the pleadings. Parties and courts occasionally take short-cuts and present certain arguments through a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), if the allegations of the complaint in the light most favorable to the plaintiff show that there is no way that any amendment could salvage the claim. Mosely’s case is not a candidate for that treatment, however. She had no obligation to allege facts negating an affirmative defense in her complaint, see Tregenza v. Great Am. Communications Co., 12 F.3d 717, 718 (7th Cir.1993) (citing Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980)). There is nothing on the face of her complaint that compels a conclusion that she failed to exhaust. Her case must therefore be remanded to the district court for further proceedings. B. No. 08-J/.120: Retaliation The district court dismissed this lawsuit under Rule 12(b)(6) for" }, { "docid": "15704545", "title": "", "text": "did so at the request of the law enforcement officers. Lewis himself did not authorize the search, nor did the police obtain a warrant for the search. In the end, the authorities obtained a videotaped confession from Andrews, and he was charged with aiding and abetting the Credit Union robbery in violation of 18 U.S.C. §§ 2, 924(c), 2113(a), and 2113(d). Lewis was never charged under either federal or state law with any offense in connection with the robbery because he was incarcerated when the bank robbery occurred. After Andrews filed a motion to suppress evidence of the robbery and his videotaped confession and the court denied that motion, the government disclosed certain Jencks Act materials to the defense. See 18 U.S.C. § 3500. This was how both Andrews and Lewis learned of Bolden’s role in the investigation. On May 14, 2003, Andrews and Lewis separately brought pro se actions in state court against Bol-den, each seeking $2 million in damages from her individually, under 42 U.S.C. § 1983, for disclosing their names and social security numbers to the Task Force. On June 6, 2003, the government responded with a complaint in federal district court seeking a temporary restraining order and a protective order under 18 U.S.C. § 1514(a) and (b), that would prohibit Andrews and Lewis from “harassing, intimidating, deposing or otherwise proceeding against Susan Bolden [in the designated cases].” In short order, the district court issued an ex parte temporary restraining order against Andrews and Lewis enjoining them from proceeding in any way against Bolden in their pending pro se actions “or in any other state or federal civil proceeding relating to any events or transactions connected with the case of United States of America v. Todd Andrews ... for charges in relation to the November 28, 2001, armed robbery of the Midwest America Federal Credit Union.” Immediately after a hearing held on June 12, 2003, the court converted this into a protective order under § 1514(b) that was to last for three years from the date of issuance; it entered judgment on that order on June 25," }, { "docid": "23145880", "title": "", "text": "the original complaint with prejudice, and entered a final judgment in favor of defendants. The district court did not address the plaintiffs request for leave to file an amended complaint. Plaintiff then filed a motion to alter the judgment under Rule 59 and submitted with the motion a proposed amended complaint. The proposed amended complaint clarified (unnecessarily) that the plaintiff sought relief solely on a theory that the defendants had violated federal law. The proposed amended complaint also included additional factual detail, particularly about the FDA’s notice to defendants that their Trident products were adulterated as a result of problems in the manufacturing process. We review the district court’s denial of a request to vacate the judgment and for leave to file an amended complaint under an abuse of discretion standard. Foster v. DeLuca, 545 F.3d 582, 583 (7th Cir.2008). The defendants led the district court into a procedural sidetrack that began with defendants’ decision to move for dismissal under Rule 12(b)(6) rather than filing an answer to plead preemption as an affirmative defense and moving for judgment on the pleadings under Rule 12(c). Preemption is an affirmative defense, e.g., Fifth Third Bank v. CSX Corp., 415 F.3d 741, 745 (7th Cir.2005), and pleadings need not anticipate or attempt to circumvent affirmative defenses. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) (concluding that there was no basis for imposing on plaintiff the burden to anticipate an affirmative defense); Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir.2003) (“Affirmative defenses do not justify dismissal under 12(b)(6)”); Fed.R.Civ.P. 8(c) (“in responding to a pleading, a party must affirmatively state any avoidance or affirmative defense”). If the defense had been properly presented under Rule 12(c), and if the district court had adhered to its erroneous view of preemption, then the proposed amended complaint would have seemed futile, but, having been presented with an affirmative defense, the plaintiff was entitled to try to cure the problem through an amended complaint. As the case was briefed, in any event, we find that the denial of leave to amend" }, { "docid": "10314032", "title": "", "text": "has been filed, if it is possible to decide the issue through a Rule 12(c) motion for judgment on the pleadings. Parties and courts occasionally take short-cuts and present certain arguments through a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), if the allegations of the complaint in the light most favorable to the plaintiff show that there is no way that any amendment could salvage the claim. Mosely’s case is not a candidate for that treatment, however. She had no obligation to allege facts negating an affirmative defense in her complaint, see Tregenza v. Great Am. Communications Co., 12 F.3d 717, 718 (7th Cir.1993) (citing Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980)). There is nothing on the face of her complaint that compels a conclusion that she failed to exhaust. Her case must therefore be remanded to the district court for further proceedings. B. No. 08-J/.120: Retaliation The district court dismissed this lawsuit under Rule 12(b)(6) for failure to state a claim. We review that action under the familiar deferential standard of Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), under which we take all facts and inferences in the light most favorable to the plaintiff, and we ask whether the complaint gives the defendant fair notice of what the suit is about and the grounds on which it rests. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Mosely’s § 1983 claim requires her to allege that a state actor deprived her of a federally-secured right. In order ultimately to prevail on the theory that her First Amendment rights were violated, Mosely will have to show that her speech was constitutionally protected, that the Board took an adverse action against her, and that its action was motivated by her constitutionally protected speech. See Smith v. Dunn, 368 F.3d 705, 708 (7th Cir.2004). The district court saw two flaws in Mosely’s action: first, that the events about which she was" }, { "docid": "5626125", "title": "", "text": "of these sections, plaintiff would have to prove either that the injury (1) was not accidental, (2) did not arise from his or her employment, (3) was not received during the course of employment, or (4) was non-compensable under the Act.” Collier v. Wagner Castings Co., 81 Ill.2d 229, 41 Ill.Dec. 776, 408 N.E.2d 198, 202 (1980). Although this language indicates that the plaintiff may ultimately bear the burden of proof as to the applicability of one of these four exceptions, the plaintiff need not include such facts in the complaint. The IWCA “provides employers with ... an affirmative [defense] whose elements — the employment relationship and the nexus between the employment and the injury — must be established by the employer, and which is waived if not asserted by him in the trial court.” Doyle v. Rhodes, 101 Ill.2d 1, 77 Ill.Dec. 759, 461 N.E.2d 382, 386 (1984); see also Acuff v. IBP, Inc., 77 F.Supp.2d 914, 922 (C.D.Ill.1999) (IWCA bar “must be pleaded and proven by the employer”). Once the employer raises the defense and establishes these two elements, the burden apparently shifts to the employee-plaintiff to prove one of the four exceptions as explained in Collier. However, complaints in federal court need not anticipate or plead around affirmative defenses. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) (citing'Fed.R.Civ.P. 8(c) (defendant must plead any “matter constituting an avoidance or affirmative defense”)). Because IWCA exclusivity is an affirmative defense, dismissal on a Rule 12(b)(6) motion' is appropriate only where the defense is conclusively established by the complaint, concessions made by the plaintiff, or any other material appropriate for judicial notice. Cf. McKee v. Brady, No. 88 C 20035, 1990 WL 304242, at *5 n.3, 1990 U.S.Dist. LEXIS 19151, at *13 n. 3 (N.D.Ill. May 14, 1990) (rejecting argument that the burden ever shifts to plaintiff to show facts sufficient to overcome the affirmative defense of statute of limitations on a motion to dismiss). Arnold may be able to adduce facts consistent with her complaint to overcome the exclusivity defense with respect to her" }, { "docid": "15704555", "title": "", "text": "not, as a matter of law, constitute harassment for purposes of § 1514, because the act of fifing a lawsuit does not constitute a “course of conduct” as § 1514 defines that term; that he brought his suit in good faith; that the suit served a legitimate purpose, namely, asserting alleged rights under the Fourth Amendment and RFPA; that his lawsuit is protected under the “safe harbor” provision of § 1515(c); and that the simple act of filing a lawsuit is incapable of causing substantial emotional distress. In addition, he argues that the district court was wrong to conclude that he filed his civil action in order to circumvent the Federal Rules of Criminal Procedure. The government, responds that Lewis has waived his arguments about “course of conduct”, the “safe harbor” provision of § 1515(c), and the circumvention of the criminal rules. We do not read the record so narrowly. Lewis’s pro se filings in opposition to the protective order set forth the substance of the arguments he is now pressing, and so we are not prevented from reaching the merits by any waiver. This is especially appropriate because Lewis never received any notice alerting him to the need to file a proper response to the government’s motion. Compare Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982). Another potential obstacle, however, arose during oral argument: has Lewis’s challenge to the protective order become moot as a result of the conviction of Andrews in the underlying criminal case or as a result of the district court’s decision to dismiss his civil action under Rule 12(b)(6), which we have concluded was correct. We think not. First, the fact that Andrews has now been convicted in no way protects Bolden from further harassment by Lewis. Nothing in § 1514 indicates that Congress meant to terminate protection as of the time the trial was over. The person for whose benefit the protective order is entered must simply be “a victim or witness in a Federal criminal case,” as Bolden was. The only aspect of the case that Andrews’s conviction affects is the possibility" }, { "docid": "15704550", "title": "", "text": "the nature of any suspected illegal activity. We agree with the district court that this language shows conclusively that Lewis has not stated a claim under RFPA. Lewis’s only response is to urge that subsection (c) describes an affirmative defense, and that it was therefore premature for the district court to dismiss his claim on the basis of the complaint. As an abstract proposition, that is usually true because complaints do not have to anticipate affirmative defenses to survive a motion to dismiss. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). The exception occurs where, as here, the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations. Leavell v. Kieffer, 189 F.3d 492, 495 (7th Cir.1999). Bolden did only what § 3403(c) permitted her to do, even giving Lewis every benefit of the doubt. We similarly see no chance of saving this complaint under the state laws governing disclosures by financial institutions without the consent of the customer. As Bolden points out in her brief, the immunity conferred by § 3403(c) covers not only liability under federal law, but also liability under “any constitution, law, or regulation of any State.” We therefore affirm the judgment of the district court in No. 03-3427, dismissing Lewis’s private civil action against Bolden. Ill We have not yet had occasion to address the standard of review for a protective order granted under 18 U.S.C. § 1514(b). Because these orders are in substance injunctions against the defendant, we think that the same abuse of discretion standard should apply to them that we normally use in cases reviewing the issuance of preliminary injunctions. Compare Brotherhood of Maint. of Way Employees v. Union Pac. R.R. Co., 358 F.3d 453, 457 (7th Cir.2004) (applying an abuse of discretion standard to a district court’s grant of a preliminary injunction); Zurich Am. Ins. Co. v. Superior Court for California, 326 F.3d 816, 824 (7th Cir.2003) (applying an abuse of discretion standard" }, { "docid": "6797448", "title": "", "text": "as a “heightened pleading standard,” see, e.g., Siegert v. Gilley, 895 F.2d 797, 801 (D.C.Cir.1990), aff'd on other grounds, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Smith v. Nixon, 807 F.2d 197, 200 (D.C.Cir. 1986), that label is misleading because application of the Hobson principles does not necessarily affect what the plaintiff must put in the complaint. Indeed, the Supreme Court made it clear in Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923-24, 64 L.Ed.2d 572 (1980), that, as a matter of substantive law, “two — and only two — allegations are required in order to state a cause of action” under 42 U.S.C. § 1983 (1994). A plaintiff must allege only that the defendant “has deprived him of a federal right” and has “acted under color of state or territorial law.” Gomez, 446 U.S. at 640, 100 S.Ct. at 1923. A defendant’s qualified immunity is an affirmative defense, and, therefore, “the burden of pleading it rests with the defendant” under the Federal Rules, which provide that the defendant must plead any “ ‘matter constituting an avoidance or affirmative defense.’” Id. (quoting Fed.R.Civ.P. 8(c)). Thus, pursuant to Gomez, a plaintiff has no obligation to anticipate or respond to a potential qualified immunity defense in the initial complaint. Once the defendant actually asserts the qualified immunity defense, however, the court must then determine whether the plaintiff can offer a sufficient factual basis to support the allegations of unconstitutional animus and therefore overcome qualified immunity. Under the Federal Rules, there are a number of appropriate mechanisms available by which the plaintiff can provide this additional factual support. For example, pursuant to Rule 7(a), the plaintiff may file a reply that sets out the plaintiffs evidence relevant to immunity and the material that the plaintiff claims is reasonably likely to lead to pertinent additional evidence. See Schultea v. Wood, 47 F.3d 1427, 1432-33 (5th Cir.1995) (en banc). Alternatively, the plaintiff may file an amended complaint or a more definite statement, or the court can use its discretionary power over discovery under Rule 26(b) to limit initial discovery" }, { "docid": "23198517", "title": "", "text": "suspect’s Fourth Amendment rights and that information gained from the interrogation could not be used to justify the initial seizure). . While it is not indicated in the complaint that the officer pointing the gun at Jacobs' head threatened to pull the trigger, it is a reasonable inference from the facts alleged that the act of pointing a loaded weapon at a person in the circumstances presented here carries with it the implicit threat that the officer will use that weapon if the person at whom it is directed does not comply with the officer's wishes. EASTERBROOK, Circuit Judge, concurring in part and concurring in the judgment. I join the judgment and all of the opinion other than the portions suggesting that a complaint may be dismissed under Fed. R.Civ.P. 12(b)(6) for failure to state a claim on which relief may be granted when, after receiving an answer and considering evi-dentiary submissions, the judge believes that the defendants are immune from damages liability. Immunity is an affirmative defense. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). What is more, qualified immunity defeats only a particular remedy, money damages. Sometimes money is the sole relief a plaintiff could seek, and if damages are unavailable the case should be dismissed. But a complaint does not limit the available relief, see Fed.R.Civ.P. 54(c), so, even when qualified immunity from damages is certain, the complaint may pass muster. And judgment following the answer should come under either Rule 12(c) or Rule 56; dismissal under Rule 12(b)(6) is improper. In Gomez the Supreme Court distinguished immunity from failure to state a claim on which relief may be granted. “By the plain terms of § 1983, two — and only two — allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.” 446 U.S. at 640, 100 S.Ct. 1920." }, { "docid": "5626126", "title": "", "text": "defense and establishes these two elements, the burden apparently shifts to the employee-plaintiff to prove one of the four exceptions as explained in Collier. However, complaints in federal court need not anticipate or plead around affirmative defenses. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) (citing'Fed.R.Civ.P. 8(c) (defendant must plead any “matter constituting an avoidance or affirmative defense”)). Because IWCA exclusivity is an affirmative defense, dismissal on a Rule 12(b)(6) motion' is appropriate only where the defense is conclusively established by the complaint, concessions made by the plaintiff, or any other material appropriate for judicial notice. Cf. McKee v. Brady, No. 88 C 20035, 1990 WL 304242, at *5 n.3, 1990 U.S.Dist. LEXIS 19151, at *13 n. 3 (N.D.Ill. May 14, 1990) (rejecting argument that the burden ever shifts to plaintiff to show facts sufficient to overcome the affirmative defense of statute of limitations on a motion to dismiss). Arnold may be able to adduce facts consistent with her complaint to overcome the exclusivity defense with respect to her IIED claim. Arnold’s only potential escape hatch is the “accidental” requirement. The exclusivity provisions will not bar a common law cause of action against an employer ... for injuries which the employer or its alter ego intentionally inflicts upon an employee or which were commanded or expressly authorized by the employer. The rationale advanced in support of this rule is that the employer should not be permitted to assert that the injury was “accidental,” and therefore under the exclusive provisions of the Act, when he himself committed the act. Meerbrey v. Marshall Field & Co., 139 Ill.2d 455, 151 Ill.Dec. 560, 564 N.E.2d 1222, 1226 (1990) (citations omitted). Although mere supervisory status is insufficient, a co-employee qualifies as an “alter ego” for purposes of the IWCA if the co-employee, “in a practical sense, speaks for the company.” Crissman v. Heatthco Int’l, Inc., No. 89 C 8298, 1992 WL 223820, at *7,1992 U.S.Dist. LEXIS 13167, at *23-24 (N.D.Ill. Sept.2, 1992). Arnold alleges that “supervisors, employees, and agents” of defendants mistreated her. (Compl.lHI 15-19.) These supervisors may" }, { "docid": "16135682", "title": "", "text": "a motion to dismiss. One treatise has explained succinctly the reason for this approach: The federal rule policy of deciding cases on the basis of the substantive rights involved rather than on technicalities requires that plaintiff be given every opportunity to cure a formal defect in his pleading. This is true even though the court doubts that plaintiff will be able to overcome the defects in his initial pleading. Amendment should be refused only if it appears to a certainty that plaintiff cannot state a claim. The better practice is to allow at least one amendment regardless of how unpromising the initial pleading appears because except in unusual circumstances it is unlikely that the court will be able to determine conclusively on the face of a defective pleading whether plaintiff actually can state a claim. 5A Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed.1990) (internal footnotes omitted). B. Statute of Limitations Neither party disputes the district court’s implementation of a four-year limitations period for the RICO claim and a six-year period for the § 1983 claim. Rather, the dispute centers on whether those periods should be deemed to have expired under the circumstances here. We conclude that, on the basis of this complaint, standing alone, the district court should not have determined that the statute of limitations necessarily barred these actions. We begin with the basic rule that the statute of limitations is an affirmative defense, see Fed.R.Civ.P. 8(c), and need not be addressed in the complaint. See U.S. Gypsum Co. v. Indiana Gas Co., Inc., 350 F.3d 623, 626 (7th Cir.2003). As we have stated recently, “[a] complaint states a claim on which relief may be granted whether or not some defense is potentially available.” United States v. N. Trust Co., 372 F.3d 886 (7th Cir.2004). Complaints need not anticipate defenses; the resolution of the statute of limitations comes after the complaint stage. See id. (citing Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980)). This general rule is subject to an important exception. The statute of limitations" }, { "docid": "10912112", "title": "", "text": "be disbelieved by the court. Neitzke, 490 U.S. at 327, 109 S.Ct. 1827; Murphy v. Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th Cir.1997). Where there are conflicting interpretations of the facts, they must be construed in the plaintiffs favor. Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1039-40 (6th Cir.1991). However, legal conclusions or unwarranted factual inferences should not be accepted as true. Lewis, 135 F.3d at 405-06. If “matters outside the pleading are presented to and not excluded by the court, the motion [to dismiss] shall be treated as one for summary judgment and disposed of as provided for in Rule 56.... ” Fed.R.Civ.P. 12(b)(6). On a motion to dismiss on the basis of qualified immunity, in addition to those facts alleged in the complaint, the court may consider facts supplied by the plaintiff after the defendant raises the affirmative defense. In the Sixth Circuit, there is no heightened pleading requirement in civil rights eases in which the defendant raises the qualified immunity defense. See Goad v. Mitchell, 297 F.3d 497, 503 (6th Cir.2002). Immunity is a defense to liability, not an element of the plaintiffs prima facie case, so the plaintiff need not overcome the defense in the complaint. See Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). To protect the substance of the qualified immunity defense, however, the district court may “require plaintiffs to produce specific, non-conclusory factual allegations of improper motive before discovery.” Goad, 297 F.3d at 504-05. Therefore, factual allegations presented in Defendants’ and Plaintiffs memoranda in support of or in opposition to this motion to dismiss will also be considered in assessing the motion. III. Analysis Defendant Luhrs’ and Newman’s motion seeks dismissal of Plaintiffs claims 1) pursuant to 42 U.S.C. § 1983, for violation of the Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution (Count I), and 2) for negligent infliction of emotional distress (Count IX). Defendant Newman further seeks to dismiss Plaintiffs claims for 1) aggravated assault and battery (Count II), 2) intentional infliction of emotional distress (Count IV), and" }, { "docid": "23145881", "title": "", "text": "moving for judgment on the pleadings under Rule 12(c). Preemption is an affirmative defense, e.g., Fifth Third Bank v. CSX Corp., 415 F.3d 741, 745 (7th Cir.2005), and pleadings need not anticipate or attempt to circumvent affirmative defenses. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) (concluding that there was no basis for imposing on plaintiff the burden to anticipate an affirmative defense); Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir.2003) (“Affirmative defenses do not justify dismissal under 12(b)(6)”); Fed.R.Civ.P. 8(c) (“in responding to a pleading, a party must affirmatively state any avoidance or affirmative defense”). If the defense had been properly presented under Rule 12(c), and if the district court had adhered to its erroneous view of preemption, then the proposed amended complaint would have seemed futile, but, having been presented with an affirmative defense, the plaintiff was entitled to try to cure the problem through an amended complaint. As the case was briefed, in any event, we find that the denial of leave to amend the complaint was an abuse of discretion for three reasons. First, for reasons explained above, the judge erred when he concluded that the amended complaint was futile on the merits because its claims would still be preempted. Second, the judge concluded that Bauseh had earlier failed to file a formal motion for leave to amend, when she requested leave to file an amended complaint in her response to the defendants’ motion to dismiss. But a formal motion for leave to amend was not necessary at the Rule 12(b)(6) stage, and the plaintiff was entitled to wait and see if any pleading problems the court might find could be corrected. Finally, the judge concluded that Bausch’s request was unduly delayed. We find no merit in the undue-delay rationale. There was no new theory of relief, but only a clarification that Bausch’s claims were focused only on violations of federal law, and a showing of additional factual details, especially related to the FDA warning letter. As a general matter, Rule 15 ordinarily requires that leave to amend" }, { "docid": "15704548", "title": "", "text": "For reasons that will become apparent later, we consider first Lewis’s appeal from the judgment dismissing his civil action against Bolden. We apply a de novo standard of review to a district court’s grant of the motion to dismiss for failure to state a claim under Rule 12(b)(6). Olson v. Wexford Clearing Servs. Corp., 397 F.3d 488, 490 (7th Cir.2005). The question before us is whether there is any-set of facts consistent with Lewis’s allegations that would give rise to a right to relief. Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir.1997) (“It is enough if the complaint puts the defendants on notice of the claim and that some set of facts could be presented that would give rise to a right to relief.”). Lewis now relies on the RFPA and state law to support his complaint. He correctly notes that his earlier references to § 1983 and the Fourth Amendment do not prevent him from going forward, because it is well established that litigants do not need to plead legal theories. Like Lewis, we focus most of our attention on his RFPA theory. Lewis argues that the allegations of the complaint are consistent with a finding that Bolden violated RFPA in two ways: first, that she conducted her search at the direction of law-enforcement officials and thus provided the government with “access to” Lewis’s financial records in violation of 12 U.S.C. § 3403(a); and second, she provided law-enforcement officials with Lewis’s name and social security number, both of which she derived from his financial records. The court assumed favorably to Lewis that Bolden had done all of these things, but it then turned to § 3403(c), which says: Nothing in this title shall preclude any financial institution, or any officer, employee, or agent of a financial institution, from notifying a Government authority that such institution, or officer, employee or agent has information which may be relevant to a possible violation of any statute or regulation. Such information may include only the name or other identifying information concerning any individual, corporation or account involved in and" }, { "docid": "15704547", "title": "", "text": "2003, and Lewis’s appeal from that judgment was docketed in this court on June 30, 2003, as appeal No. 03-2734. In the meantime, Bolden removed both Lewis’s and Andrews’s state court actions to the U.S. District Court for the Northern District of Indiana. There she moved to dismiss for failure to state a claim, arguing both that the § 1983 claim failed for lack of state action and that the Right to Financial Privacy Act (RFPA), 12 U.S.C. § 3403(a), which generally prohibits disclosure of financial records of customers, did not reach her actions. The district court granted her motion and entered judgment in her favor on August 26, 2003, agreeing that there was no state action and finding that she was immune under an exemption to the RFPA, see 12 U.S.C. § 3403(c). Lewis’s appeal from that judgment was docketed in this court on September 15, 2003, as No. 03-3427. In a later order, we consolidated the two appeals. (Andrews’s case dropped out along the way; we therefore have no comment on it.) II For reasons that will become apparent later, we consider first Lewis’s appeal from the judgment dismissing his civil action against Bolden. We apply a de novo standard of review to a district court’s grant of the motion to dismiss for failure to state a claim under Rule 12(b)(6). Olson v. Wexford Clearing Servs. Corp., 397 F.3d 488, 490 (7th Cir.2005). The question before us is whether there is any-set of facts consistent with Lewis’s allegations that would give rise to a right to relief. Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir.1997) (“It is enough if the complaint puts the defendants on notice of the claim and that some set of facts could be presented that would give rise to a right to relief.”). Lewis now relies on the RFPA and state law to support his complaint. He correctly notes that his earlier references to § 1983 and the Fourth Amendment do not prevent him from going forward, because it is well established that litigants do not need to plead legal" }, { "docid": "22450175", "title": "", "text": "should not be allowed.” Harlow, 457 U.S. at 818, 102 S.Ct. 2727. Thus, “[ujnless the plaintiffs allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Mitchell, 472 U.S. at 526,105 S.Ct. 2806. Here, the Individual Defendants argue that plaintiffs’ complaint is subject to dismissal because plaintiffs have failed to allege facts showing that the Individual Defendants’ conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Behrens, 516 U.S. at 305, 116 S.Ct. 834. They also contend that plaintiffs should not be allowed to survive a qualified immunity defense at the motion to dismiss stage by crafting a complaint so lacking in factual detail that it effectively avoids a qualified immunity analysis. (Appellant’s Brief 23.) Their argument is not without some appeal since imposition of such a pleading requirement would facilitate the early resolution of the qualified immunity issue and would avoid the risk of subjecting public officials who are immune to suit from the burdens of discovery. While facially appealing, the Individual Defendants’ argument ultimately lacks merit because it-conflates qualified immunity with the merits of a plaintiffs cause of action under § 1983. In Gomez v. Toledo, 446 U.S. 635, 635-36, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980), the Supreme Court considered the issue of whether, in an action brought under § 1983 against a public official whose position might entitle him to qualified immunity, a plaintiff must plead allegations in anticipation of the affirmative defense. The Gomez Court began its analysis by elucidating the distinction between a plaintiffs cause of action under § 1983 and a claim of qualified immunity: [T]wo — and only two — allegations are required in order to state a cause of action under [§ 1983]. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law. Id. at 640, 100 S.Ct. 1920. The Gomez Court observed" }, { "docid": "15704551", "title": "", "text": "laws governing disclosures by financial institutions without the consent of the customer. As Bolden points out in her brief, the immunity conferred by § 3403(c) covers not only liability under federal law, but also liability under “any constitution, law, or regulation of any State.” We therefore affirm the judgment of the district court in No. 03-3427, dismissing Lewis’s private civil action against Bolden. Ill We have not yet had occasion to address the standard of review for a protective order granted under 18 U.S.C. § 1514(b). Because these orders are in substance injunctions against the defendant, we think that the same abuse of discretion standard should apply to them that we normally use in cases reviewing the issuance of preliminary injunctions. Compare Brotherhood of Maint. of Way Employees v. Union Pac. R.R. Co., 358 F.3d 453, 457 (7th Cir.2004) (applying an abuse of discretion standard to a district court’s grant of a preliminary injunction); Zurich Am. Ins. Co. v. Superior Court for California, 326 F.3d 816, 824 (7th Cir.2003) (applying an abuse of discretion standard to review a district court’s order enjoining as state court proceeding). We are now ready to address Lewis’s appeal from the judgment ordering him to refrain from harassing or otherwise proceeding against Bolden in any court for matters arising out of the Credit Union robbery. The court relied for that order on the authority conferred in 18 U.S.C. § 1514, which permits the government to apply for a temporary restraining order or a protective order “prohibiting harassment of a victim or witness in a Federal criminal case.” § 1514(a) (temporary restraining order), (b) (protective order). The statute defines the term “harassment” to mean “a course of conduct directed at a specific person that — (A) causes substantial emotional distress in such person; and (B) serves no legitimate purpose.” § 1514(c)(1). The term “course of conduct” is defined as “a series of acts over a period of time, however short, indicating a continuity of purpose.” § 1514(c)(2). The district court offered several reasons for its conclusion that a protective order for Bolden was warranted in this" }, { "docid": "15704546", "title": "", "text": "security numbers to the Task Force. On June 6, 2003, the government responded with a complaint in federal district court seeking a temporary restraining order and a protective order under 18 U.S.C. § 1514(a) and (b), that would prohibit Andrews and Lewis from “harassing, intimidating, deposing or otherwise proceeding against Susan Bolden [in the designated cases].” In short order, the district court issued an ex parte temporary restraining order against Andrews and Lewis enjoining them from proceeding in any way against Bolden in their pending pro se actions “or in any other state or federal civil proceeding relating to any events or transactions connected with the case of United States of America v. Todd Andrews ... for charges in relation to the November 28, 2001, armed robbery of the Midwest America Federal Credit Union.” Immediately after a hearing held on June 12, 2003, the court converted this into a protective order under § 1514(b) that was to last for three years from the date of issuance; it entered judgment on that order on June 25, 2003, and Lewis’s appeal from that judgment was docketed in this court on June 30, 2003, as appeal No. 03-2734. In the meantime, Bolden removed both Lewis’s and Andrews’s state court actions to the U.S. District Court for the Northern District of Indiana. There she moved to dismiss for failure to state a claim, arguing both that the § 1983 claim failed for lack of state action and that the Right to Financial Privacy Act (RFPA), 12 U.S.C. § 3403(a), which generally prohibits disclosure of financial records of customers, did not reach her actions. The district court granted her motion and entered judgment in her favor on August 26, 2003, agreeing that there was no state action and finding that she was immune under an exemption to the RFPA, see 12 U.S.C. § 3403(c). Lewis’s appeal from that judgment was docketed in this court on September 15, 2003, as No. 03-3427. In a later order, we consolidated the two appeals. (Andrews’s case dropped out along the way; we therefore have no comment on it.) II" }, { "docid": "15704549", "title": "", "text": "theories. Like Lewis, we focus most of our attention on his RFPA theory. Lewis argues that the allegations of the complaint are consistent with a finding that Bolden violated RFPA in two ways: first, that she conducted her search at the direction of law-enforcement officials and thus provided the government with “access to” Lewis’s financial records in violation of 12 U.S.C. § 3403(a); and second, she provided law-enforcement officials with Lewis’s name and social security number, both of which she derived from his financial records. The court assumed favorably to Lewis that Bolden had done all of these things, but it then turned to § 3403(c), which says: Nothing in this title shall preclude any financial institution, or any officer, employee, or agent of a financial institution, from notifying a Government authority that such institution, or officer, employee or agent has information which may be relevant to a possible violation of any statute or regulation. Such information may include only the name or other identifying information concerning any individual, corporation or account involved in and the nature of any suspected illegal activity. We agree with the district court that this language shows conclusively that Lewis has not stated a claim under RFPA. Lewis’s only response is to urge that subsection (c) describes an affirmative defense, and that it was therefore premature for the district court to dismiss his claim on the basis of the complaint. As an abstract proposition, that is usually true because complaints do not have to anticipate affirmative defenses to survive a motion to dismiss. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). The exception occurs where, as here, the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations. Leavell v. Kieffer, 189 F.3d 492, 495 (7th Cir.1999). Bolden did only what § 3403(c) permitted her to do, even giving Lewis every benefit of the doubt. We similarly see no chance of saving this complaint under the state" } ]

[ { "docid": "4126752", "title": "", "text": "commonplace child oriented community or school supported activities for which a parent or guardian may waive his or her child’s litigation rights in authorizing the child’s participation.” Id. at 1067. Moreover, the Southern District of Florida has recently found a parental pre-injury release executed for participation in Royal Carribean Cruises Wave Runner program to be invalid based upon the distinctions set forth in Shea and Gonzalez. See In re: Complaint of Royal Caribbean Cruises, Ltd., 403 F.Supp.2d 1168, 1172-73 (S.D.Fla.2005) (holding a parental pre-injury release executed for a minor’s participation in RCC’s Wave Runner tour to be invalid as it involved an activity run by a for-profit business outside of a school or community setting). Therefore, the Court finds that the parental pre-injury release which Keith Howard executed on behalf of his minor son Mark Howard is unenforceable as it involved an activity run by a for-profit business outside of a school or community setting. B. Doctrine Of Unseaworthiness Next, RCC contends that the doctrine of unseaworthiness is limited to seaman and does not extend to passengers, therefore, the Claimants’ unseaworthiness claims must fail. To support this contention, RCC primarily relies upon Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 n. 6, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996). In Calhoun, a twelve year old girl (Natalie Calhoun) was killed in a collision in territorial waters off Puerto Rico while riding a jet ski manufactured and distributed by Yamaha Motor Corp (“Yamaha”). Following her death, Natalie Calhoun’s parents sought to recover damages from Yamaha. In their complaint, the Calhouns asserted several state law based causes of action. However, Yamaha moved for partial summary judgment on the grounds that the federal maritime wrongful death action, recognized in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), provided the exclusive basis for recovery. The district court granted Yamaha’s motion for partial summary judgment and eventually this matter was appealed to the U.S. Supreme Court. The U.S. Supreme Court granted certiora-ri as to the following question: “Does the federal maritime claim for wrongful death recognized in" } ]

[ { "docid": "16282292", "title": "", "text": "documents after being instructed to do so by employees of New River Scenic. The first (“the indemnity agreement”), labeled “WAIVER AND RELEASE OF LIABILITY INDEMNIFICATION AGREEMENT,” states in pertinent part: In consideration for Lindsay Gillespie (Print Name) (“minor”) being permitted by NEW RIVER' SCENIC WHITEWATER TOURS to participate in its recreational events and activities, I agree to this WAIVER, RELEASE AND INDEMNIFICATION; the undersigned parent and/or guardian of the minor, for themselves and on behalf of the minor, join in the foregoing WAIVER AND RELEASE and stipulates and agrees to SAVE AND HOLD HARMLESS, INDEMNIFY, AND FOREVER DEFEND NEW RIVER SCENIC WHITEWATER TOURS from and 'against any claims, actions, demands, expenses, liabilities (including reasonable attorneys’ fees) and NEGLIGENCE made or brought by the minor or by anyone on behalf of the minor, as a result of the minor’s participation in NEW RIVER SCENIC WHITEWATER TOURS sponsored recreational events and activities and the use of the facilities of NEW RIVER SCENIC WHITEWATER TOURS. At the bottom of the form and above a line designated for “Signature of Parent or Guardian of Minor” appears the signature “John A. Peters.” The second form (“the release of liability”) that Peters signed is labeled, “WAIVER AND RELEASE OF LIABILITY.” In pertinent part, it states: I understand this rafting trip, which has been arranged by NEW RIVER SCENIC WHITEWATER TOURS, INC., is a participation sport which involves certain hazards and risks. The risks and hazards involved may include, but are not limited to, traveling in rough waters in a rubber raft, having medical emergencies in remote areas, unexpected weather conditions, as well as risks involved in transportation by cars, buses, and other vehicles. By signing this form, I indicate I am aware of the above dangers and that, furthermore, I release NEW RIVER SCENIC WHITEWATER TOURS, INC. from liability, claims, debts, and actions of all kinds both now and in the future, as a result of my participation in this trip. It will also serve as a release for my heirs, executors, administrators, and any minors accompanying me (Par ents or Guardian must sign for all" }, { "docid": "5101580", "title": "", "text": "her child’s cause of action for injuries caused by negligence”); Kirton v. Fields, 997 So.2d 349, 356 (Fla.2008) (listing cases, and stating that “[i]n holding that preinjury releases executed by parents on behalf of minor children are unenforceable for participation in commercial activities, we are in agreement with the majority of other jurisdictions.”). Second, many courts rejecting parents’ right to bind children to pre-injury releases have relied on legal principles recognized by Alabama, as discussed above. For example, courts have relied in part on the principle that parents may not bind a child to a settlement releasing post-injury claims without court approval. Galloway, 790 N.W.2d at 257 (“As the Washington Supreme Court has noted, if a parent lacks authority without court approval to compromise and settle her minor child’s personal injury claim after an injury has occurred, ‘it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury.’ ”) (quoting Scott v. Pac. W. Mountain Resort, 119 Wash.2d 484, 834 P.2d 6, 11-12 (1992)); accord Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 386 (2006); Meyer v. Naperville Manner, Inc., 262 Ill.App.3d 141, 199 Ill.Dec. 572, 634 N.E.2d 411, 414-15 (1994). Courts have also relied on the policy, also recognized in Alabama, of the state’s role of protecting minors from harm. See, e.g., Kirton, 997 So.2d at 357-58; Hojnowski, 901 A.2d at 386; Meyer, 199 Ill.Dec. 572, 634 N.E.2d at 414-15. Third, the only published decisions from other jurisdictions that have bound children to pre-injury releases executed by a parent or guardian on the child’s behalf have done so in the context of a “minor’s participation in school-run or community-sponsored activities.” Kirton, 997 So.2d at 356 (citing Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)); Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738 (2002); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 696 N.E.2d 201, 205 (1998). By contrast, this court is not aware of a single case, that has not been overturned," }, { "docid": "16282315", "title": "", "text": "Contracts § 195(2)(b)-(c), the West Virginia Supreme Court in Murphy held that a clause in an agreement exempting a party from tort liability is unenforceable on grounds of public policy if the agreement would exempt a party from liability arising from that party’s failure to comply with a safety statute, as “the safety obligation created by the statute for such purpose is an obligation owed to the public at large and is not within the power of any private individual to waive.” 412 S.E.2d at 509. In the circumstances presented by the instant case, the Court is unable to find a practical distinction between a waiver of liability executed by a parent on behalf of a minor and an agreement through which a parent agrees to indemnify a third party for any harm that may befall a minor through the third party’s failure to comply with a safety statute. If a parent were able to waive liability on behalf of a minor, the responsibility for paying for any harm suffered by the minor (in particular, medical expenses) would necessarily be borne by the parent, who is obligated to care for her child. Similarly, a parent who indemnifies a third party shifts the responsibility for paying for the financial consequences of harm that befalls the minor as the result of that third party's illegal conduct. In both situations, then, the result is identical: a tortfeasor who fails to comply with a safety statute is able to shift his financial responsibility for his tortious conduct to the parent of the minor victim. If that shift is unacceptable when the applicable document is a \"release of liability,\" then that shift must necessarily also be unacceptable if the applicable document is styled an \"indemnification.\" Thus, the West Virginia Supreme Court's holding in Murphy compels the conclusion that a parent may not indemnify a third party against the parent's minor child for liability for conduct that violates a safety statute such as the Whitewater Responsibility Act. While the principles expressed in Murphy are sufficient to support this Court's analysis, other factors further undergird the conclusion" }, { "docid": "16282293", "title": "", "text": "of Parent or Guardian of Minor” appears the signature “John A. Peters.” The second form (“the release of liability”) that Peters signed is labeled, “WAIVER AND RELEASE OF LIABILITY.” In pertinent part, it states: I understand this rafting trip, which has been arranged by NEW RIVER SCENIC WHITEWATER TOURS, INC., is a participation sport which involves certain hazards and risks. The risks and hazards involved may include, but are not limited to, traveling in rough waters in a rubber raft, having medical emergencies in remote areas, unexpected weather conditions, as well as risks involved in transportation by cars, buses, and other vehicles. By signing this form, I indicate I am aware of the above dangers and that, furthermore, I release NEW RIVER SCENIC WHITEWATER TOURS, INC. from liability, claims, debts, and actions of all kinds both now and in the future, as a result of my participation in this trip. It will also serve as a release for my heirs, executors, administrators, and any minors accompanying me (Par ents or Guardian must sign for all person under age 18). H* * * * * * I hereby assume all risks and dangers and all responsibility for any losses and/or damages, whether caused in whole or in part by the negligence or other conduct of the owners, agents, officers, or employees of NEW RIVER SCENIC WHITEWATER TOURS, INC., or by any other person. I, on behalf of myself, my personal representatives and my heirs hereby voluntarily agree to release, waive, discharge, hold harmless, defend and indemnify NEW RIVER SCENIC WHITEWATER TOURS, Inc. and its owners, agents officers and employees from any and all claims, actions, or losses for bodily injury, property, damage, wrongful death, loss of services or otherwise which may arise out of my use of NEW RIVER SCENIC WHITEWATER TOURS, INC. equipment or my participation in Outfitter Guide Services activities. I specifically understand that I am releasing, discharging and waiving any claims or actions that I may have presently or in the future for the negligent acts or other conduct by the owners, agents or employees of NEW RIVER" }, { "docid": "16282316", "title": "", "text": "medical expenses) would necessarily be borne by the parent, who is obligated to care for her child. Similarly, a parent who indemnifies a third party shifts the responsibility for paying for the financial consequences of harm that befalls the minor as the result of that third party's illegal conduct. In both situations, then, the result is identical: a tortfeasor who fails to comply with a safety statute is able to shift his financial responsibility for his tortious conduct to the parent of the minor victim. If that shift is unacceptable when the applicable document is a \"release of liability,\" then that shift must necessarily also be unacceptable if the applicable document is styled an \"indemnification.\" Thus, the West Virginia Supreme Court's holding in Murphy compels the conclusion that a parent may not indemnify a third party against the parent's minor child for liability for conduct that violates a safety statute such as the Whitewater Responsibility Act. While the principles expressed in Murphy are sufficient to support this Court's analysis, other factors further undergird the conclusion reached in this case. First, allowing a parent to indemnify a third party for its tortious conduct towards the parent's minor child would result in a serious affront to the doctrine of parental immunity. See Courtney v. Courtney, 186 W.Va. 597, 413 S.E.2d 418, 427-28 (1991) (explaining that subject to limited exceptions, parental immunity remains a viable doctrine in West Virginia). If a parent could enter into a binding contract of indemnification regarding tort injuries to her minor child, the result would be that the child, for full vindication of his legal rights, would need to seek a recovery from his parent. This would clearly abrogate the strong West Virginia public policy to \"preserve the peace and tranquility of society and families by prohibiting such intra-family legal battles.\" Cole, 482 S.E.2d at 926. In interpreting recreational operator liability statutes, the West Virginia Supreme Court has not hesitated to rely on case law from other jurisdictions. See, e.g., Murphy, 412 S.E.2d at 509-10; Lewis v. Canaan Valley Resorts, Inc., 185 W.Va. 684, 408 S.E.2d 634, 642" }, { "docid": "20408420", "title": "", "text": "the preinjury release executed by a father on behalf of his minor child enforceable against any claims resulting from the child’s participation in a school-sponsored event); Sharon v. City of Newton, 437 Mass. 99, 112, 769 N.E.2d 738 (2002) (holding that a parent has the authority to bind a minor child to a waiver of liability as a condition of a child’s participation in public school extracurricular sports activities); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 696 N.E.2d 201, 205 (1998) (concluding that a parent may bind a minor child to a release of volunteers and sponsors of a nonprofit sports activity from liability for negligence because the threat of liability would strongly deter “many individuals from volunteering for nonprofit organizations”). As the Ohio Supreme Court explained in Zivich, in community and volunteer-run activities, the providers cannot afford to carry liability insurance because “volunteers offer their services without receiving any financial return.” 696 N.E.2d at 205. III. Analysis The parties have not cited a Texas Supreme Court case addressing the enforceability of a parent’s preinjury release of liability against a minor child. The guidance provided by the Texas appellate court case law and the underlying statutes provides a reliable basis for making an Erie prediction about how the highest Texas state court would rule if confronted with the question. “When making an Erie [R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ]-guess in the absence of explicit guidance from the state courts, [this court] must attempt to predict state law, not to create or modify it.” Assoc. Inter. Ins. Co. v. Blythe, 286 F.3d 780, 783 (5th Cir.2002) (citation omitted). Based on the case law in Texas and in other jurisdictions, this court holds that the preinjury release executed by the minor’s mother in this case is not enforceable to release the defendants from all liability for the minor’s injuries. The record does not suggest that the defendants were operating a nonprofit community or school program. Under the majority approach, the release of a commercial enterprise from liability for the child’s" }, { "docid": "16282317", "title": "", "text": "reached in this case. First, allowing a parent to indemnify a third party for its tortious conduct towards the parent's minor child would result in a serious affront to the doctrine of parental immunity. See Courtney v. Courtney, 186 W.Va. 597, 413 S.E.2d 418, 427-28 (1991) (explaining that subject to limited exceptions, parental immunity remains a viable doctrine in West Virginia). If a parent could enter into a binding contract of indemnification regarding tort injuries to her minor child, the result would be that the child, for full vindication of his legal rights, would need to seek a recovery from his parent. This would clearly abrogate the strong West Virginia public policy to \"preserve the peace and tranquility of society and families by prohibiting such intra-family legal battles.\" Cole, 482 S.E.2d at 926. In interpreting recreational operator liability statutes, the West Virginia Supreme Court has not hesitated to rely on case law from other jurisdictions. See, e.g., Murphy, 412 S.E.2d at 509-10; Lewis v. Canaan Valley Resorts, Inc., 185 W.Va. 684, 408 S.E.2d 634, 642 (1991) (discussing constitutionality of limitation of liability for ski area operators). A review of the law of other states also weighs against enforcing the alleged parental indemnity agreement at issue in this case. \"Agreements by parents to indemnify or hold harmless persons with respect to future claims by the parents' minor children have ... usually been invalid with respect to the minors' claims, although there is little law on point.\" Joseph H. King, Jr., Exculpatory Agreements for Volunteers in Youth Activities-The Alteriaative to \"Nerf (registered)\" Tiddlywinks, 53 Oaio ST. L.J. 683, 714 n.132 (1992). A growing number of courts have embraced the conclusion reached by this Court today. See, e.g., Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1237 (Cob. 2002) (\"As a practical matter, release and indemnity provisions in contracts signed by parents or guardians on behalf of their minor children go hand-in-hand: having invalidated release provi sions, it would be contradictory to then effectively undercut a minor’s rights to sue by allowing indemnity clauses that make such suits for all realistic purposes unlikely.”);" }, { "docid": "20408416", "title": "", "text": "in Texas appears to be Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex.App.-Houston [14th Dist.] 1993, no writ). In that case, the parents sued an amusement park for damages resulting from personal injuries their daughter incurred on a ride. The trial court granted summary judgment based on a “Waiver of Liability” form (“waiver”) signed by the child’s older sister who accompanied her to the park. The appellate court reversed, holding that § 12.04(7) of the Texas Family Code, (the predecessor to § 151.001(a) (7)), which empowers a parent to make legal decisions concerning their child, does not give parents the power to waive a child’s cause of action for personal injuries. The court stated that it based its decision “on what our supreme court has described as a ‘strong, long-standing policy of this state to protect the interests of its children.’” Id. at 210 (quoting Williams v. Patton, 821 S.W.2d 141, 145 (Tex.1991) (holding that parents could not agree to reduce the amount of child support because it is a benefit of the child, not the custodial parent, based on a public policy to protect children)). Other states and federal courts have also addressed the propriety of a parent or guardian’s execution of a preinjury release on behalf of a minor child. Most have held that preinjury releases executed by parents on behalf of minor children are unenforceable for participation in commercial activities. See, e.g., Johnson v. New River Scenic Whitewater Tours, Inc., 313 F.Supp.2d 621, 629-32 (S.D.W.Va.2004) (finding that a parent could not waive liability on behalf of a minor child and also could not indemnify a third party against the parent’s minor child for liability for conduct that violated a safety statute such as the Whitewater Responsibility Act); In re Complaint of Royal Carribean Cruises Ltd., 459 F.Supp.2d 1275, 1279-81 (S.D.Fla.2006) (under Florida law, parent’s preinjury release of liability on behalf of minor child was unenforceable to exonerate the commercial lessor of personal watercraft from liability for injuries sustained by child in accident that occurred while the minor was a passenger on watercraft operated by the parentdessee);" }, { "docid": "20408415", "title": "", "text": "508. Texas courts have consistently held that whether an agreement provides fair notice of a release provision is immaterial if the releaser had actual knowledge of the existence of the release provision. Dresser, 853 S.W.2d at 508 n. 2; Cate v. Dover Corp., 790 S.W.2d 559, 561 (Tex.1990) (a party who, before entering into contract, has actual knowledge of its terms cannot escape enforcement of those terms on the ground that the terms are inconspicuous); Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 20 S.W.3d 119, 126 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (holding an indemnity agreement read by indemnitor conspicuous and rejecting indemnitor’s argument that the indemnitee must show that the indemnitor actually noticed the indemnity language when reading the agreement). The plaintiffs rely on an additional aspect of the law governing preinjury releases. Texas and other courts have held that when a parent signs a document that releases a defendant of any liability for inju ríes suffered by a minor, that release is unenforceable on the basis of public policy. The leading case in Texas appears to be Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex.App.-Houston [14th Dist.] 1993, no writ). In that case, the parents sued an amusement park for damages resulting from personal injuries their daughter incurred on a ride. The trial court granted summary judgment based on a “Waiver of Liability” form (“waiver”) signed by the child’s older sister who accompanied her to the park. The appellate court reversed, holding that § 12.04(7) of the Texas Family Code, (the predecessor to § 151.001(a) (7)), which empowers a parent to make legal decisions concerning their child, does not give parents the power to waive a child’s cause of action for personal injuries. The court stated that it based its decision “on what our supreme court has described as a ‘strong, long-standing policy of this state to protect the interests of its children.’” Id. at 210 (quoting Williams v. Patton, 821 S.W.2d 141, 145 (Tex.1991) (holding that parents could not agree to reduce the amount of child support because it is a benefit of the child," }, { "docid": "16282319", "title": "", "text": "Keeney v. Mystic Valley Hunt, 2003 WL 22792318, at *3 (Conn.Super.Nov.13, 2003) (holding that parental indemnity agreements create “precisely the type of scenario that the parental immunity doctrine is designed to prevent”); Valdimer v. Mt. Vernon Hebrew Camps, 9 N.Y.2d 21, 210 N.Y.S.2d 520, 172 N.E.2d 283, 284-86 (1961) (where public policy would render a settlement of an infant’s claims unenforceable, similar public policy interests rendered parental indemnity contract unenforceable); Hawkins v. Peart, 37 P.3d 1062, 1067 (Utah 2001) (“Such an agreement creates an unacceptable conflict of interest between a parent and a minor ... ”). In a thoughtful, frequently cited opinion, a Tennessee court held that because under Tennessee law a parent cannot execute an exculpatory agreement on behalf of her incompetent child, public policy would preclude her from indemnifying a potential tortfeasor for harm to her child. Childress v. Madison County, 777 S.W.2d 1 (Tenn.Ct.App.1989). The Chil-dress court recognized that certain public policies could benefit from enforcing parental indemnity agreements, but concluded that these were ultimately outweighed by the same public policy that prevented a parent from executing an enforceable release of liability on behalf of a minor: We do not deny that there are good and logical reasons for giving effect to exculpatory and indemnification clauses executed by parents and guardians on behalf of infants and incompetents. Risk is inherent in many activities that make the lives of children richer. A world without risk would be an impoverished world indeed. As Helen Keller well said, “Security is mostly a superstition. It does not exist in nature, nor do the children of men as a whole experience it. Avoiding danger is no safer in the long run than outright exposure. Life is either a daring adventure or nothing.” Partnow, Quotable Woman, 173 (1977). Ultimately, this case is a determination of who must bear the burden of the risk of injury to infants and minors. Id. at 7. Under West Virginia law, a whitewater operator whose conduct fails to conform with the standard of care expected by a member of his profession must bear the burden of risk of" }, { "docid": "16282318", "title": "", "text": "(1991) (discussing constitutionality of limitation of liability for ski area operators). A review of the law of other states also weighs against enforcing the alleged parental indemnity agreement at issue in this case. \"Agreements by parents to indemnify or hold harmless persons with respect to future claims by the parents' minor children have ... usually been invalid with respect to the minors' claims, although there is little law on point.\" Joseph H. King, Jr., Exculpatory Agreements for Volunteers in Youth Activities-The Alteriaative to \"Nerf (registered)\" Tiddlywinks, 53 Oaio ST. L.J. 683, 714 n.132 (1992). A growing number of courts have embraced the conclusion reached by this Court today. See, e.g., Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1237 (Cob. 2002) (\"As a practical matter, release and indemnity provisions in contracts signed by parents or guardians on behalf of their minor children go hand-in-hand: having invalidated release provi sions, it would be contradictory to then effectively undercut a minor’s rights to sue by allowing indemnity clauses that make such suits for all realistic purposes unlikely.”); Keeney v. Mystic Valley Hunt, 2003 WL 22792318, at *3 (Conn.Super.Nov.13, 2003) (holding that parental indemnity agreements create “precisely the type of scenario that the parental immunity doctrine is designed to prevent”); Valdimer v. Mt. Vernon Hebrew Camps, 9 N.Y.2d 21, 210 N.Y.S.2d 520, 172 N.E.2d 283, 284-86 (1961) (where public policy would render a settlement of an infant’s claims unenforceable, similar public policy interests rendered parental indemnity contract unenforceable); Hawkins v. Peart, 37 P.3d 1062, 1067 (Utah 2001) (“Such an agreement creates an unacceptable conflict of interest between a parent and a minor ... ”). In a thoughtful, frequently cited opinion, a Tennessee court held that because under Tennessee law a parent cannot execute an exculpatory agreement on behalf of her incompetent child, public policy would preclude her from indemnifying a potential tortfeasor for harm to her child. Childress v. Madison County, 777 S.W.2d 1 (Tenn.Ct.App.1989). The Chil-dress court recognized that certain public policies could benefit from enforcing parental indemnity agreements, but concluded that these were ultimately outweighed by the same public policy that" }, { "docid": "16282291", "title": "", "text": "for summary judgment against New River Scenic and Scott. Ms. Johnson seeks an order precluding any party from referencing these documents at trial. II. Factual Background The Fort Johnson Baptist Church is located in Charleston, South Carolina. In August 1999, the church sponsored a youth trip to Charleston, West Virginia, for the purpose of performing mission work. The trip culminated in a whitewater rafting excursion on the New River. Peters, Fort Johnson’s Associate Pastor for Youth and Education, handled most of the arrangements for the whitewater event on the church’s behalf. Prior to the start of the trip, Fort Johnson required the youth participants to obtain “permission slips” from their parents or guardians. While Ms. Johnson remembers executing one to facilitate Lindsay’s participation in the mission trip, Lindsay apparently lost the form before turning it in to Peters. Nonetheless, Ms. Johnson recalls giving a secretary of Fort Johnson verbal authorization for her daughter to travel with the group on the morning the trip began. On August 13, before the whitewater trip commenced, Peters signed two documents after being instructed to do so by employees of New River Scenic. The first (“the indemnity agreement”), labeled “WAIVER AND RELEASE OF LIABILITY INDEMNIFICATION AGREEMENT,” states in pertinent part: In consideration for Lindsay Gillespie (Print Name) (“minor”) being permitted by NEW RIVER' SCENIC WHITEWATER TOURS to participate in its recreational events and activities, I agree to this WAIVER, RELEASE AND INDEMNIFICATION; the undersigned parent and/or guardian of the minor, for themselves and on behalf of the minor, join in the foregoing WAIVER AND RELEASE and stipulates and agrees to SAVE AND HOLD HARMLESS, INDEMNIFY, AND FOREVER DEFEND NEW RIVER SCENIC WHITEWATER TOURS from and 'against any claims, actions, demands, expenses, liabilities (including reasonable attorneys’ fees) and NEGLIGENCE made or brought by the minor or by anyone on behalf of the minor, as a result of the minor’s participation in NEW RIVER SCENIC WHITEWATER TOURS sponsored recreational events and activities and the use of the facilities of NEW RIVER SCENIC WHITEWATER TOURS. At the bottom of the form and above a line designated for “Signature" }, { "docid": "5101579", "title": "", "text": "the minor’s “best interest[s].” Id. The teaching of these cases is that, in Alabama, the default rule is that contracts with minors are voidable. While the Alabama Supreme Court has shown willingness to make a narrow exception to this rule in the unique factual scenario from Peck v. Dill, that case serves as an exception, not a change in, the default rule. B. Law from Other Jurisdictions Because no Alabama case or statute directly addresses the issue of the case at bar, the court turns to the law of other jurisdictions for persuasive guidance. There are three important conclusions to be drawn from the law of other jurisdictions. First, the majority rule in the United States is that parents may not bind their children to pre-injury liability waivers by signing the waivers on their children’s behalf. See, e.g., Galloway v. Iowa, 790 N.W.2d 252, 256 (Iowa 2010) (listing cases and stating that “the majority of state courts who have examined the issue ... have concluded public policy precludes enforcement of a parent’s pre-injury waiver of her child’s cause of action for injuries caused by negligence”); Kirton v. Fields, 997 So.2d 349, 356 (Fla.2008) (listing cases, and stating that “[i]n holding that preinjury releases executed by parents on behalf of minor children are unenforceable for participation in commercial activities, we are in agreement with the majority of other jurisdictions.”). Second, many courts rejecting parents’ right to bind children to pre-injury releases have relied on legal principles recognized by Alabama, as discussed above. For example, courts have relied in part on the principle that parents may not bind a child to a settlement releasing post-injury claims without court approval. Galloway, 790 N.W.2d at 257 (“As the Washington Supreme Court has noted, if a parent lacks authority without court approval to compromise and settle her minor child’s personal injury claim after an injury has occurred, ‘it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury.’ ”) (quoting Scott v. Pac. W. Mountain Resort, 119 Wash.2d 484, 834 P.2d 6," }, { "docid": "17081178", "title": "", "text": "that releases Defendant from liability is rendered ambiguous by the following sentence: “I understand that I share the responsibility for safety during all activities, and I assume that responsibility.” (App. at 104.) She contends that by “discussing two alternate allocations of risk in the same document, the Release does not clearly and unambiguously express the intent of the parties, and thus, is unenforceable.” (Appellant’s Opening Br. at 23.) However, these two provisions create no such ambiguity. The sentence on which Plaintiff relies clearly expresses the participant’s agreement to share in the responsibility of participating in a safe manner, whereas the release provision clearly expresses the participant’s intent to release Defendant from liability. As the magistrate judge concluded, the two are not mutually exclusive, and the first provision makes it no less clear that Plaintiffs mother intended to release Defendant from liability for any negligence claim. Because the Release contains clear and unambiguous language demonstrating Plaintiffs mother intended to release any negligence claims Plaintiff might have against Defendant, it is valid and enforceable under Jones. B. Informed Decision Under Colorado Revised Statute Section 13-22-107 We turn then to whether Mrs. Squires’s consent to the Release was voluntary and informed, as required by Section 13-22-107. Plaintiff argues it was not because her mother did not understand the risks involved with adaptive skiing and, specifically, the use of bi-skis. In 2002, the Colorado Supreme Court held “that Colorado’s public policy disallows a parent or guardian to execute exculpatory provisions on behalf of his minor child for a prospective claim based on negligence.” Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1237 (Colo.2002), superseded by statute, Colo.Rev.Stat. § 13-22-107(3). The following year, the General Assembly superseded Cooper through enactment of Section 13-22-107(3). Under this section, “[a] parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.”' Colo.Rev.Stat. § 13-22-107(3). The statute “declare[s] that parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities.” Wycoff v. Grace Cmty. Church of the Assemblies of" }, { "docid": "20408417", "title": "", "text": "not the custodial parent, based on a public policy to protect children)). Other states and federal courts have also addressed the propriety of a parent or guardian’s execution of a preinjury release on behalf of a minor child. Most have held that preinjury releases executed by parents on behalf of minor children are unenforceable for participation in commercial activities. See, e.g., Johnson v. New River Scenic Whitewater Tours, Inc., 313 F.Supp.2d 621, 629-32 (S.D.W.Va.2004) (finding that a parent could not waive liability on behalf of a minor child and also could not indemnify a third party against the parent’s minor child for liability for conduct that violated a safety statute such as the Whitewater Responsibility Act); In re Complaint of Royal Carribean Cruises Ltd., 459 F.Supp.2d 1275, 1279-81 (S.D.Fla.2006) (under Florida law, parent’s preinjury release of liability on behalf of minor child was unenforceable to exonerate the commercial lessor of personal watercraft from liability for injuries sustained by child in accident that occurred while the minor was a passenger on watercraft operated by the parentdessee); Meyer v. Naperville Manner, Inc., 262 Ill.App.3d 141, 146-47 199 Ill.Dec. 572, 634 N.E.2d 411 (1994) (finding a parental preinjury waiver unenforceable in a case involving a minor child injured after falling off a horse at a horseback riding school); Doyle v. Bowdoin Coll, 403 A.2d 1206, 1208 n. 3 (Me. 1979) (stating in dicta that a parent cannot release a child’s cause of action); Smith v. YMCA of Benton Harbor/St. Joseph, 216 Mich-App. 552, 550 N.W.2d 262, 263 (1996) (“It is well settled in Michigan that, as a general rule, a parent has no authority, merely by virtue of being a parent, to waive, release, or compromise claims by or against the parent’s child.”); Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 383 (2006) (finding in a case involving a child injured while skateboarding at a skate park facility, “a parent may not bind a minor child to a pre-injury release of a minor’s prospective tort claims resulting from the minor’s use of a commercial recreational facility”); Childress v. Madison County," }, { "docid": "5101581", "title": "", "text": "11-12 (1992)); accord Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 386 (2006); Meyer v. Naperville Manner, Inc., 262 Ill.App.3d 141, 199 Ill.Dec. 572, 634 N.E.2d 411, 414-15 (1994). Courts have also relied on the policy, also recognized in Alabama, of the state’s role of protecting minors from harm. See, e.g., Kirton, 997 So.2d at 357-58; Hojnowski, 901 A.2d at 386; Meyer, 199 Ill.Dec. 572, 634 N.E.2d at 414-15. Third, the only published decisions from other jurisdictions that have bound children to pre-injury releases executed by a parent or guardian on the child’s behalf have done so in the context of a “minor’s participation in school-run or community-sponsored activities.” Kirton, 997 So.2d at 356 (citing Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)); Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738 (2002); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 696 N.E.2d 201, 205 (1998). By contrast, this court is not aware of a single case, that has not been overturned, that has held these clauses to be binding in the context of a for-profit activity. C. Application to the Case at Bar The court concludes, based on the law of Alabama as well as persuasive authority from other jurisdictions, that the Release signed by Thompson on J.T.’s behalf is not binding on J.T. First, J.T. is a minor, so the applicable default rule under Alabama law is that any contract made with J.T. is voidable. Second, there is no exception under current Alabama law that requires that this court apply a different rule under the facts of this case. For example, the policy considerations that the Alabama Supreme Court discussed in Peck, of ensuring that minors receive medical care and do not receive windfalls, do not apply to the facts of this case. This is not a case about a child receiving medical care, rather, it is a case about a child participating in a recreational event. Third, under Alabama law, a parent may not bind a child to a settlement releasing the child’s post-injury" }, { "docid": "16282327", "title": "", "text": "in a rafting accident (thus altogether precluding recovery). Further, the court in Cole was examining whether a parent should be permitted to recover for the death of his minor child when the parent's own contributory negligence may have itself been a proximate cause of the child's death. No such factor is at issue with respect to parental indemnity agreements. . Tennessee has adopted a rule whereby a parent may never execute an exculpatory agreement on behalf of a minor child. This Court is aware that no such rule exists in West Virginia. However, as the Court has explained, under West Virginia law a parent could never sign a release exculpating a third party from liability for harm befalling a minor child due to conduct that violates a safety statute. Therefore, the narrow circumstances present in the instant case, which alleges a violation of the Whitewater Responsibility Act thus making any release executed either by the victim or a parent on her behalf unenforceable, are analogous to the general rule in Tennessee that such a release is unenforceable in any circumstance." }, { "docid": "20408418", "title": "", "text": "Meyer v. Naperville Manner, Inc., 262 Ill.App.3d 141, 146-47 199 Ill.Dec. 572, 634 N.E.2d 411 (1994) (finding a parental preinjury waiver unenforceable in a case involving a minor child injured after falling off a horse at a horseback riding school); Doyle v. Bowdoin Coll, 403 A.2d 1206, 1208 n. 3 (Me. 1979) (stating in dicta that a parent cannot release a child’s cause of action); Smith v. YMCA of Benton Harbor/St. Joseph, 216 Mich-App. 552, 550 N.W.2d 262, 263 (1996) (“It is well settled in Michigan that, as a general rule, a parent has no authority, merely by virtue of being a parent, to waive, release, or compromise claims by or against the parent’s child.”); Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 383 (2006) (finding in a case involving a child injured while skateboarding at a skate park facility, “a parent may not bind a minor child to a pre-injury release of a minor’s prospective tort claims resulting from the minor’s use of a commercial recreational facility”); Childress v. Madison County, 777 S.W.2d 1, 6-7 (Tenn.Ct.App.1989) (extending the law that a parent could not execute a preinjury release on behalf of a minor child to a mentally handicapped 20-year-old student who was injured while training for the Special Olympics at a YMCA swimming pool); Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001) (concluding in a case involving a child injured by falling off a horse provided by a commercial business that “a parent does not have the authority to release a child’s claims before an injury”); Scott v. Pac. W. Mountain Resort, 119 Wash.2d 484, 492- 93, 834 P.2d 6 (1992) (holding that the enforcement of an exculpatory agreement signed by a parent on behalf of a minor child participating in a ski school is contrary to public policy). There are cases enforcing preinjury releases executed by parents on behalf of minor children. Most of these cases involve a minor’s participation in school-run or community-sponsored activities. See, e.g., Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 1564-65, 274 Cal. Rptr. 647 (Cal.Ct.App.1990) (finding" }, { "docid": "16282326", "title": "", "text": "a principal (here, Lindsay) lacks contractual capacity by reason of infancy, any contract entered into on her behalf by her agent (purportedly, Peters) would be voidable. See, e.g., Restatement (Second) Of Agency § 20, cmt. d (\"The contract of an infant to employ an agent is voidable by him, as is any contract made for him by such agent, except a contract for necessaries.''). . The West Virginia Supreme Court has \"recognize[d] the espoused purpose of the doctrine of parental immunity is less forceful when a child dies and a wrongful death suit is brought.\" Cole v. Fairchild, 198 W.Va. 736, 482 S.E.2d 913, 927 (1996). The instant action is, of course, one for wrongful death. Nonetheless, the validity of an indemnifica.tion agreement cannot be examined from a standpoint that takes into account the severity of a child's injuries; such an analysis could create a rule whereby an indemnification would be unenforceable if a child were merely injured in a rafting accident (thus allowing full recovery from the tortfeasor) but enforceable if the child dies in a rafting accident (thus altogether precluding recovery). Further, the court in Cole was examining whether a parent should be permitted to recover for the death of his minor child when the parent's own contributory negligence may have itself been a proximate cause of the child's death. No such factor is at issue with respect to parental indemnity agreements. . Tennessee has adopted a rule whereby a parent may never execute an exculpatory agreement on behalf of a minor child. This Court is aware that no such rule exists in West Virginia. However, as the Court has explained, under West Virginia law a parent could never sign a release exculpating a third party from liability for harm befalling a minor child due to conduct that violates a safety statute. Therefore, the narrow circumstances present in the instant case, which alleges a violation of the Whitewater Responsibility Act thus making any release executed either by the victim or a parent on her behalf unenforceable, are analogous to the general rule in Tennessee that such a release" }, { "docid": "20408419", "title": "", "text": "777 S.W.2d 1, 6-7 (Tenn.Ct.App.1989) (extending the law that a parent could not execute a preinjury release on behalf of a minor child to a mentally handicapped 20-year-old student who was injured while training for the Special Olympics at a YMCA swimming pool); Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001) (concluding in a case involving a child injured by falling off a horse provided by a commercial business that “a parent does not have the authority to release a child’s claims before an injury”); Scott v. Pac. W. Mountain Resort, 119 Wash.2d 484, 492- 93, 834 P.2d 6 (1992) (holding that the enforcement of an exculpatory agreement signed by a parent on behalf of a minor child participating in a ski school is contrary to public policy). There are cases enforcing preinjury releases executed by parents on behalf of minor children. Most of these cases involve a minor’s participation in school-run or community-sponsored activities. See, e.g., Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 1564-65, 274 Cal. Rptr. 647 (Cal.Ct.App.1990) (finding the preinjury release executed by a father on behalf of his minor child enforceable against any claims resulting from the child’s participation in a school-sponsored event); Sharon v. City of Newton, 437 Mass. 99, 112, 769 N.E.2d 738 (2002) (holding that a parent has the authority to bind a minor child to a waiver of liability as a condition of a child’s participation in public school extracurricular sports activities); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 696 N.E.2d 201, 205 (1998) (concluding that a parent may bind a minor child to a release of volunteers and sponsors of a nonprofit sports activity from liability for negligence because the threat of liability would strongly deter “many individuals from volunteering for nonprofit organizations”). As the Ohio Supreme Court explained in Zivich, in community and volunteer-run activities, the providers cannot afford to carry liability insurance because “volunteers offer their services without receiving any financial return.” 696 N.E.2d at 205. III. Analysis The parties have not cited a Texas Supreme Court case addressing the enforceability of" } ]

[ { "docid": "13426590", "title": "", "text": "by other circuits. See North River Insurance Co. v. Fed Sea/Fed Pac Line, 647 F.2d 985, 989 (9th Cir.1981) (foreign jurisdiction clause valid when COGSA applies only as contract term); Ralston Purina Co. v. Barge Juneau & Gulf Carribean Lines, 619 F.2d 374, 375 (5th Cir.1980) (parties’ agreement to one year limitation on suit prevails over COGSA provision); Commonwealth Petrochemicals Inc. v. S/S Puerto Rico, 607 F.2d 322, 325 (4th Cir.1979) (specific definition of “package” in bill of lading controls over definition in COGSA); P.P.G. Industries, Inc. v. Ashland Oil Co., 527 F.2d 502, 507 (3d Cir.1975) (parties could have extended, but neglected so to do, COGSA’s statute of limitations provision to agent of carrier). Thus, in this case COGSA does not apply of its own force as a statute, but merely as a contractual term in the bill of lading. We disagree with the district court’s assertion that state law is “totally unavailing.” We see no reason to deviate from our holding in Leather’s Best v. S.S. Mormaclynx, 451 F.2d 800, 808 (2d Cir.1971), that an action against a terminal for negligent loss of cargo is not within federal maritime jurisdiction, but is a state claim governed by state law. Since state law governs, provisions of COGSA incorporated by contract can be valid only insofar as they do not conflict with applicable state law. In deciding this pendent claim, of course, the district court must act in the same manner as would a New York state court, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and this rule applies to conflicts rules as well, Klaxon Co. v. Stentor Electric Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Here, plaintiffs allege that the oil was lost due to defendants’ negligence. Since the loss occurred in New Jersey, a New York court would apply New Jersey law. Babcock v. Jackson, 12 N.Y.2d 473, 483, 240 N.Y.S.2d 743, 750-51, 191 N.E.2d 279, 284 (1963) (“where the defendant’s exercise of due care ... is in issue, the jurisdiction in which the" } ]

[ { "docid": "13008678", "title": "", "text": "Keeton on The Law of Torts (5th ed. 1984) at 851, this right has been recognized in some form by virtually all states. See id. at 850-51. As a commercial, rather than a personal right, it is fully assignable. [T]he effect ... is to recognize or create an exclusive right in the individual plaintiff to a species of trade name, his own, and a kind of trade mark in his likeness____ Once protected by law, it is a right of value upon which the plaintiff can capitalize by selling licenses. Prosser and Keeton on The Law of Torts (5th ed. 1984) at 854. Great Britain does not recognize a right of publicity. See Tolley v. Fry, 1 K.B. 467 (1930). Consequently, the choice between United States and British law is determinative in this case. II. When a federal court exercises pendent jurisdiction over state law claims, as here, it must apply the substantive law of the state in which it sits. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) (citing Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). This includes the forum state’s choice of law rules. Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), reaffirmed, Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3, 96 S.Ct. 167, 46 L.Ed.2d 3 (1975). Thus, we must determine what law the Massachusetts courts would apply. As in most American jurisdictions, Massachusetts’ choice of law rules are in transition. The state has turned away from the rigid, single-factor analysis associated with the first Restatement of Conflict of Laws (1934) in favor of the more flexible, multiple-factor, “interest analysis” or “most significant relationship” analysis exemplified by the Restatement (Second) of Conflict of Laws (1971). Compare Cameron v. Gunstock Acres, Inc., 370 Mass. 378, 381-82, 348 N.E.2d 791, 793 (1976) (applying single-factor test) with Choate, Hall & Stewart v. SCA Servs., Inc., 378 Mass. 535, 541, 392 N.E.2d 1045, 1048-49 (1979) (announcing “more functional” approach). Under the older approach, courts determined which" }, { "docid": "12265667", "title": "", "text": "of the place where the act or omission giving rise to the government’s liability occurred. 28 U.S.C. § 1346(b). This has been interpreted to include the whole law of the state where the cause of action arose, including that state’s choice of law rules. Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962); Johnson v. United States, 576 F.2d 606, 611 (5th Cir.1978). Since the crash occurred in Texas, the whole law of Texas applies to the claims against the government in this case. b. As for the other defendants, in a diversity action the law of the state where the district court sits governs the substantive issues in the case. Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938); Syrie v. Knoll International, 748 F.2d 304, 306 (5th Cir.1984) (applying Texas law in a products liability action). Again, this incorporates the whole law of the state, including its choice of law rules. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). This Texas district court must also apply the whole law of Texas to issues concerning the nongovernmental defendants. c. Texas has adopted the most significant relationship approach embodied in sections 6 and 145 of the Restatement (Second) of Conflict of Laws as the guide for making choice of law determinations in tort cases. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (Tex.1984); Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex.1979). In weighing the factors listed, trial courts are cautioned to conduct a qualitative rather than a quantitative analysis. Gutierrez, 583 S.W.2d at 319. d. Application of section 145’s list of contacts yields the following results in this case. The injury and the conduct causing the injury occurred in Texas and defendant Mitsubishi resides in Texas, but nearly all of the plaintiffs and defendant Baker resided in Georgia at the time of the crash. None of the plaintiffs had any relevant contractual relationships with any of the defendants. The choice then, appears to be" }, { "docid": "18755586", "title": "", "text": "extent of Merritt’s interest in the barge. We conclude that South Carolina law is applicable. In Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941), the Supreme Court held that a federal court sitting in diversity must apply the choice of law rules of the state in which it sits. The Klaxon rule rested on the rationale that a federal court, in determining state law issues which arise in federal court only by the accident of diversity, must apply state law, including state conflict of law rules, to those issues. Id.; Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). That same principle applies where a federal court addresses state law claims under its pendent jurisdiction. Colgate Palmolive Co. v. S/S Dart Canada, 724 F.2d 313, 316 (2d Cir.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 562 (1984); System Operations, Inc. v. Scientific Games Development Corp., 555 F.2d 1131, 1136 (3d Cir.1977). The question of what choice of law rules should be applied by a bankruptcy court presents another wrinkle. Although bankruptcy cases involve federal statutes and federal questions, a bankruptcy court may, as here, face situations in which the applicable federal law incorporates matters which are the subject of state law. It is clear that a federal court in such cases must apply state law to the underlying substantive state law questions. Whether a court in such a situation must apply the conflicts rule of the forum state in determining which state’s law to apply or may choose the applicable state law as a matter of independent federal judgment, however, has remained an open question. See 1A Moore’s Federal Practice ¶ 0.325 (2d ed. 1985). We believe, however, that in the absence of a compelling federal interest which dictates otherwise, the Klaxon rule should prevail where a federal bankruptcy court seeks to determine the extent of a debtor’s property interest. The argument for applying the Klaxon rule to state law questions arising in bankruptcy cases is compelling. A uniform rule" }, { "docid": "2384553", "title": "", "text": "which it breached by purchasing the Trust’s shares for less than their fair market value. The class contends that the district court erred by finding that Maryland law governed and that Maryland law did not recognize such a cause of action. A federal court exercising pendent jurisdiction over state law claims, must apply the substantive law of the state in which it sits. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) (citing Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). This includes the forum state’s choice of law rules. See, e.g., In re Merritt Dredging Co., Inc., 839 F.2d 203, 205 (4th Cir.1988); Bi-Rite Enterprises, Inc. v. Bruce Miner Co., Inc., 757 F.2d 440, 442 (1st Cir.1985); Colgate Palmolive Co. v. S/S Dart Canada, 724 F.2d 313, 316 (2d Cir.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 562 (1984); System Operations, Inc. v. Scientific Games Development Corp., 555 F.2d 1131, 1136 (3d Cir.1977). We must therefore determine what law Texas courts would apply to this claim. Texas has adopted the “most significant relationship” test of the Restatement (Second) of Conflict of Laws § 6 (1971) for resolving choice of law issues. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.1984). “However, a court should only resort to the § 6 guidelines in the absence of either a valid contractual agreement between the parties regarding the applicable law, or a local statutory provision controlling the disposition of the choice of law question.” American Home Assurance Co. v. Safeway Steel Products Co., Inc., 743 S.W.2d 693, 697 (Tex.App.—Austin 1987, writ denied). Comment (a) of § 6 provides that “A court, subject to constitutional limitation, must follow the directions of its legislature.” The class argues that Texas has the “most significant relationship” to its claim and that Texas law should govern. Texas, however, has a statute which specifically controls the choice of law issue. Tex. Bus. Corp. Act Ann. art. 8.02 (Vernon Supp. 1989) provides that: [T]he internal affairs of a foreign corporation, including" }, { "docid": "1680344", "title": "", "text": "section 50 — i. Under the Municipal Law’s commencement provisions service of a notice of claim is a condition precedent to a lawsuit against a municipal corporation. To fulfill the requirements of the General Municipal Law, plaintiff must file a notice of claim within 90 days from the accrual of the cause of action. Plaintiff must also plead in her complaint that she has served a notice of claim. A further requirement is that the plaintiff must state in the complaint that the notice was served at least 30 days prior to commencement of the action and that in that time defendant neglected to or refused to adjust or satisfy the claim. Plaintiff argues that these provisions are not applicable to actions brought in Federal Courts, but rather, that Rules 3 and 4 of the Federal Rules of Civil Procedure govern this suit. In ruling on a claim brought under pendent jurisdiction, a federal court is required to apply state substantive law. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Under the Erie doctrine, Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.2d 1188 (1938), which is applicable to both diversity and pendent jurisdiction, Hamilton v. Roth, 624 F.2d 1204, 1210 n. 6 (3d Cir.1980); see Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139 (citing Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)), a distinction is drawn between procedural and substantive law. In Erie, 304 U.S. 64, 58 S.Ct. 817, the Supreme Court held that a court hearing a case predicated on diversity jurisdiction should apply state substantive law. The Court has reasoned that this rule was necessary to discourage forum shopping. Hanna v. Plumer, 380 U.S. 460, 468, 85 S.Ct. 1136, 1142, 14 L.Ed.2d 8 (1965). The Court further reasoned that it would be unfair for the character or result of a litigation to materially differ simply because the suit had been brought in a federal court rather than a state court. Id. at 467, 85 S.Ct. at 1141. In" }, { "docid": "17532796", "title": "", "text": "Upon Termination (Count I). When facing a claim that does not arise under the Constitution or the laws of the United States, a federal court must apply the substantive law of the forum in which it sits, including that state’s eonflict-of-laws provisions. See Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941). This principal applies with equal force to a state-law claim brought under supplemental jurisdiction, such as this. See Bi-Rite Enters., Inc. v. Bruce Miner Co., 757 F.2d 440, 442 (1st Cir.1985) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966)). Thus, we must determine what law a Massachusetts court would apply. If two contracting parties express “a specific intent as to the governing law, Massachusetts courts will uphold the parties’ choice as long as the result is not contrary to public policy and as long as the designated State has some substantial relation to the contract.” See Steranko v. Inforex, Inc., 5 Mass.App.Ct. 253, 362 N.E.2d 222, 228 (1977) (citations omitted). The SRA signed by Dykes and DePuy states that it is “governed by and interpreted in accordance with the laws of the State of Indiana.” Neither of the parties here argues that application of Indiana law would contravene public policy. Since DePuy is headquartered in Indiana, that state bears a “substantial relation to the contract.” Id. Accordingly, if Dykes’s claims for breach of good faith and fair dealing arise from the SRA, we will apply Indiana law. Dykes seeks to avoid this result by arguing that Count I of his complaint somehow presents a cause of action for wrongful discharge distinct from Dykes’s contract and that therefore Count I should be evaluated under the substantive law of Massachusetts. We believe that Dykes’s claim can properly be understood only as a claim for breach of an implied term of the SRA, the contract governing his relationship with DePuy. For that reason, it is governed by Indiana law. In order to support his contention that his “wrongful termination” rests solely on" }, { "docid": "8190816", "title": "", "text": "federal statute, see 12 U.S.C. § 1821(d)(2)(A)(l), would hardly make sense. Because the Court does not find a significant conflict between federal interests and the application of state law, it will grant the Defendant’s motion and decline to apply federal common law to the Receiver’s claims. The Court must now determine which body of law appropriately applies to these claims. IV. Which Law Applies? A. Federal or State Choice of Law Rules As stated above, a United States District Court’s choice of law inquiry tradi tionally occurs as a two step process. First, the court must determine whether federal or state choice of law rules govern. Second, once the court has determined which choice of law rules apply, it must apply these rules to the facts of the case to determine the appropriate substantive laws. A federal court exercising diversity or pendent jurisdiction over state law claims must apply the choice of law rules of the forum in determining which law governs those claims. Klaxon Company v. Stentor Electric Manufacturing, Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); In re Merritt Dredging Co., 839 F.2d 203, 206 (4th Cir.1988); and System Operations, Inc. v. Scientific Games Dev. Corp., 555 F.2d 1131, 1136 (3d Cir.1977). This rule is based on the recognition that the holding of Erie v. Tompkins extends to the field of conflict of laws because federal choice of law rules are themselves a species of federal common law. See Klaxon, 313 U.S. at 496, 61 S.Ct. 1020 (“It is not for federal courts to thwart [state] policies by enforcing an independent ‘general law’ of conflict of laws.”); and In re Gaston & Snow, 243 F.3d 599, 601-602 (2nd Cir. 2001) (“[F]ederal choice of law rules are a type of federal common law.”). Despite this general prohibition on applying federal choice of law rules to state law claims, the Fourth Circuit has indicated that the presence of a “compelling federal interest which dictates otherwise” may justify departure from the rule" }, { "docid": "22247884", "title": "", "text": "Corp., 180 Cal.App.2d 582, 4 Cal.Rptr. 612 (1960). The threshold issue that we must decide is what law governs the Clubs’ master-servant claims. The parties offer no assistance. Instead of considering the choice-of-law question, they rely upon “traditional principles of master-servant common law.” Appellees’ Brief 8; see Appellant’s Brief 43. Notwithstanding the parties’ assumptions to the contrary, master-servant common law exists only with reference to the laws of particular states. As Justice Brandéis once stated, “[t]here is no federal general common law.” Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). For a federal court to base its decision on “established principles of master-servant common law” that are independent of the law of any state would contravene Erie by creating a federal common law of master-servant relationships. In general, a federal district court sitting in diversity, and this court on appeal, must follow the choice-of-law rules of the state in which the district court sits. See Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941); see also National Association of Sporting Goods Wholesalers, Inc. v. F.T.L. Marketing Corp., 779 F.2d 1281, 1284 (7th Cir.1985). Although diversity of citizenship is not present in this case, federal courts, reasoning by analogy from diversity cases, have applied Klaxon to determine what law governs pendent state claims. See National Resources Trading, Inc. v. Trans Freight Lines, 766 F.2d 65, 68 (2d Cir.1985); Bi-Rite Enterprises, Inc. v. Bruce Miner Co., 757 F.2d 440, 442 (1st Cir.1985); McSurely v. McClellan, 753 F.2d 88, 110 (D.C.Cir.), cert. denied, — U.S. -, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985); ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 49 n. 11 (4th Cir.1983), cert. denied, 469 U.S. 1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985); Rohm & Haas Co. v. Adco Chemical Co., 689 F.2d 424, 428-29 (3d Cir.1982). We agree that the choice-of-law rule for pendent state claims should be that of the forum. Illinois conflicts law thus governs the choice of law in this case. The Clubs’ argument" }, { "docid": "2384552", "title": "", "text": "regarding a breach of section 406(b) through defendants “causing” the plan to enter into a prohibited transaction would be irrelevant. The jury’s finding that the defendants did not exercise discretionary authority or control over the trustees’ decision to sell the trust stock is also a finding that they did not “cause” the plan to enter into such a transaction. “[Ajppellants’ status as fiduciaries with respect to the Trust’s stock depend[ed] on whether they controlled the trustees’ decision to sell.” Sommers, 793 F.2d at 1460. Adding an instruction on section 406(b) would have been only another way of asking whether the defendants exercised discretionary authority or control over the trustees’ decision to sell the trust stock, and would have been unnecessarily confusing. The district court properly followed our prior instructions, and we find no error in his charge to the jury. IV Finally, the class argues that the trial court erred by dismissing its pendent state law claim. In its complaint, the class alleged that defendants had a fiduciary duty to the Trust as minority shareholder, which it breached by purchasing the Trust’s shares for less than their fair market value. The class contends that the district court erred by finding that Maryland law governed and that Maryland law did not recognize such a cause of action. A federal court exercising pendent jurisdiction over state law claims, must apply the substantive law of the state in which it sits. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) (citing Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). This includes the forum state’s choice of law rules. See, e.g., In re Merritt Dredging Co., Inc., 839 F.2d 203, 205 (4th Cir.1988); Bi-Rite Enterprises, Inc. v. Bruce Miner Co., Inc., 757 F.2d 440, 442 (1st Cir.1985); Colgate Palmolive Co. v. S/S Dart Canada, 724 F.2d 313, 316 (2d Cir.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 562 (1984); System Operations, Inc. v. Scientific Games Development Corp., 555 F.2d 1131, 1136 (3d Cir.1977). We must therefore determine" }, { "docid": "13199002", "title": "", "text": "248, 106 S.Ct. at 2510. It is elementary that a United States District Court when acting with diversity jurisdiction must follow the settled law of the state in which it sits. Where such law is unclear or unsettled, a district court must faithfully predict how the highest court of such state would rule if the case were before it. Kline v. Wheels by Kinney, Inc., 464 F.2d 184, 187 (4th Cir.1972). And as stated by the Fourth Circuit in the opinion of Washington v. Union Carbide Corp., 870 F.2d 957 (4th Cir.1989), “[fjederal courts are permitted under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and [United Mine Workers v.] Gibbs, 383 U.S. [715] at 715, 86 S.Ct. [1130] at 1130, [16 L.Ed.2d 218 (1966) ] to rule upon state law as it presently exists and not to surmise or suggest its expansion.” Washington, 870 F.2d at 962. If a party’s state claim is not one which would be recognized under state law as it presently exists, a federal court cannot according to its own sense of what is best expand such law so as to recognize the claim. It is only where a federal court can reasonably “predict” that the state’s highest court applying its presently existing law would recognize such a claim, that the federal court can do so. A federal court must also follow the choice of law rules of the state in which it sits. Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). West Virginia generally follows the Restatement (Second) Conflict of Laws (1971). A comprehensive choice of law analysis can easily require the greatest amount of a court’s effort in a given case, particularly where as here there are multiple plaintiffs, some of whom are domiciliar-les of different states, claiming they were injured in more than one state. Here all of the Plaintiffs are domiciliaries of either West Virginia or Virginia, except for one who is a domiciliary of North Carolina but who is presently residing in West" }, { "docid": "2384554", "title": "", "text": "what law Texas courts would apply to this claim. Texas has adopted the “most significant relationship” test of the Restatement (Second) of Conflict of Laws § 6 (1971) for resolving choice of law issues. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.1984). “However, a court should only resort to the § 6 guidelines in the absence of either a valid contractual agreement between the parties regarding the applicable law, or a local statutory provision controlling the disposition of the choice of law question.” American Home Assurance Co. v. Safeway Steel Products Co., Inc., 743 S.W.2d 693, 697 (Tex.App.—Austin 1987, writ denied). Comment (a) of § 6 provides that “A court, subject to constitutional limitation, must follow the directions of its legislature.” The class argues that Texas has the “most significant relationship” to its claim and that Texas law should govern. Texas, however, has a statute which specifically controls the choice of law issue. Tex. Bus. Corp. Act Ann. art. 8.02 (Vernon Supp. 1989) provides that: [T]he internal affairs of a foreign corporation, including but not limited to the rights, powers, and duties of its board of directors and shareholders and matters relating to its shares, shall be governed solely by the laws of its jurisdiction of incorporation. See also Tex. Bus. Corp. Act Ann. art. 8.01.A (Vernon Supp.1989) (“nothing in this Act contained shall be construed to authorize this State to regulate the organization of [a foreign] corporation or its internal affairs”). The Texas legislature has therefore made clear that the law of the incorporating state, in this case Maryland law, governs the class’s claim. The class, relying on Mansfield Hardwood Lumber Co. v. Johnson, 268 F.2d 317, 321 (5th Cir.1959), cert. denied, 361 U.S. 885, 80 S.Ct. 156, 4 L.Ed.2d 120 (1959), argues that the Texas statute should not apply. In Mansfield, we stated that the common law rule that a corporation’s internal affairs are governed by the law of the incorporating state should not apply “where the only contact point with the incorporating state is the naked fact of incorporation, and where all other contact points" }, { "docid": "13789327", "title": "", "text": "Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), provides the basis for jurisdiction over Sanders’ pendent state law claims against the individual defendants. To determine whether or not to apply Fla.Stat. § 768.72 to those claims, this Court takes heed of Justice Brennan’s unequivocal assertion in Gibbs that a federal court hearing such claims “is bound to apply state law to them.” 383 U.S. at 726, 86 S.Ct. at 1139 (citing Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). Gibbs extends the rule announced in Erie, from requiring federal courts to apply state law only in cases based- on diversity jurisdiction, to those based on pendent jurisdiction as well. Specifically, Erie requires that federal courts apply only that state law which can be construed as substantive. Several Supreme Court decisions decided after Erie, narrowed the meaning of “substantive” by use of various tests. In Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), the Court adopted an “outcome-determinative test,” requiring federal courts to apply state law as necessary to resolve questions so that “the outcome of the litigation in federal court [would] be substantially the same, so far as legal rules determine the outcome of litigation, as it would be if tried in a State court.” 326 U.S. at 108, 65 S.Ct. at 1469. In 1956, the Court abandoned the outcome based test of Guaranty Trust and mandated application of state law if required by the federal interest in uniform procedure and the state interest in uniformity of result. Byrd v. Blue Ridge Rural Electric Co-op., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1956). Finally, in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), the Court required federal courts faced with seemingly equally applicable state and federal law to determine where a direct conflict exists between the two. If such a conflict exists, the relevant federal law is to be applied. If the laws do not conflict, the court must" }, { "docid": "14574770", "title": "", "text": "asser tions, and legalistic argumentation are not an adequate substitute for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir.1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1993). III. ANALYSIS A. “Except in matters governed by federal law, when as here a federal court’s jurisdiction is predicated upon diversity of citizenship of the parties, the federal court must apply the substantive law of the state in which it is sitting.” Maryland Cas. Co. v. Williams, 377 F.2d 389, 392 (5th Cir.1967) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). In a diversity case, if the court is required to construe an insurance contract, the court will apply applicable state law. Griffin v. McCoach, 313 U.S. 498, 503, 61 S.Ct. 1023, 85 L.Ed. 1481 (1941). Likewise, federal courts sitting in diversity are governed by the conflict-of-laws rules of the courts of the states in which they sit. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Under Texas law, the law of the state with the most significant relationship to the substantive issue in question is to be applied. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.1984). While the underlying lawsuit was filed in Ohio, the policy in question was sold to a Texas corporation through a Texas agent. The insurance policy covered activities principally centered in the state of Texas. Therefore, because Texas has the most significant relationship to and interest in the resolution of this case, Texas law will apply. B. Under Texas law, when determining whether an insurance company has a duty to defend its insured, courts adhere to the “Complaint Allegation Rule,” also known as the “Eight Corners Rule.” That rule states that an insurer’s duty to defend is determined by the allegations in the pleadings and the language of the insurance policy. National Union Fire Ins. Co. of Pittsburgh v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997)." }, { "docid": "18755585", "title": "", "text": "trustee asserts that Merritt’s interest in the barge is governed by South Carolina law. Under South Carolina law, the trustee argues, the charter party represents a security agreement, and Compliance’s failure to perfect its interest in the barge by filing rendered its interest subordinate to that of the trustee. Compliance argues that Louisiana’s law, which does not recognize conditional sales, governs the determination of the interests conveyed by the charter party. Compliance contends that under Louisiana law the charter party represents a lease which conveyed no ownership interest to Merritt, and that the barge is therefore not part of the debtor’s estate. II. A. The determination of property rights in the assets of a bankrupt’s estate is generally a matter of state law. Butner v. United States, 440 U.S. 48, 54, 99 S.Ct. 914, 917-18, 59 L.Ed.2d 136 (1979). Because the property right at issue in this case grows out of a transaction having significant contacts to two states, we must first decide whether the law of South Carolina or that of Louisiana determines the extent of Merritt’s interest in the barge. We conclude that South Carolina law is applicable. In Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941), the Supreme Court held that a federal court sitting in diversity must apply the choice of law rules of the state in which it sits. The Klaxon rule rested on the rationale that a federal court, in determining state law issues which arise in federal court only by the accident of diversity, must apply state law, including state conflict of law rules, to those issues. Id.; Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). That same principle applies where a federal court addresses state law claims under its pendent jurisdiction. Colgate Palmolive Co. v. S/S Dart Canada, 724 F.2d 313, 316 (2d Cir.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 562 (1984); System Operations, Inc. v. Scientific Games Development Corp., 555 F.2d 1131, 1136 (3d Cir.1977). The question of what" }, { "docid": "8190817", "title": "", "text": "S.Ct. 1020, 85 L.Ed. 1477 (1941); United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); In re Merritt Dredging Co., 839 F.2d 203, 206 (4th Cir.1988); and System Operations, Inc. v. Scientific Games Dev. Corp., 555 F.2d 1131, 1136 (3d Cir.1977). This rule is based on the recognition that the holding of Erie v. Tompkins extends to the field of conflict of laws because federal choice of law rules are themselves a species of federal common law. See Klaxon, 313 U.S. at 496, 61 S.Ct. 1020 (“It is not for federal courts to thwart [state] policies by enforcing an independent ‘general law’ of conflict of laws.”); and In re Gaston & Snow, 243 F.3d 599, 601-602 (2nd Cir. 2001) (“[F]ederal choice of law rules are a type of federal common law.”). Despite this general prohibition on applying federal choice of law rules to state law claims, the Fourth Circuit has indicated that the presence of a “compelling federal interest which dictates otherwise” may justify departure from the rule established in Klaxon. See In re Merritt Dredging Co., 839 F.2d 203, 206 (4th Cir.1988) (holding that “in the absence of a compelling federal interest which dictates otherwise, the Klaxon rule should prevail where a federal bankruptcy court seeks to determine the extent of a debtor’s property interest.”). At issue, therefore, is whether there exists a compelling federal interest in this case sufficient to justify application of federal choice of law rules. The Receiver contends that there is no such federal interest in this case. The clear thrust of Klaxon and In re Merritt Dredging, he argues, is that the source of the right sued upon, rather than the source of the court’s jurisdiction, governs whether state or federal choice of law rules apply to a given claim. The Receiver goes on to point out that the claims pled are exclusively state law causes of action, thereby requiring the application of Virginia’s choice of law rules. The Receiver also seeks to distance himself from SEC v. Infinity Group, 27 F.Supp.2d 559 (E.D.Pa.1998), a case upon" }, { "docid": "17532795", "title": "", "text": "effectively became' employees of DePuy. The program, however, depended on several contingencies prior to vesting, and while it undoubtedly provided a strong incentive for sales representatives to want to maintain their contractual relationship with DePuy, it does not overcome the many indicia that that relationship was one of independent contract, not employment. We conclude that a reasonable factfinder could not find on this record that DePuy was Dykes’s employer. Dykes has pointed to no case law in which a court has held, on similar facts, that an employer-employee relationship existed. Under the multi-factored common law test of agency, and in light of Speen, Dykes has failed to raise genuine factual issues regarding his employment status. Since as a matter of law Dykes was an independent contractor, the district court properly granted summary judgment on Dykes’s ERISA, ADA, and state antidiscrimination claims. B. Dykes’s Allegations Regarding Breach of the Implied Covenant of Good Faith and Fair Dealing. Dykes alleges that DePuy improperly terminated his relationship in bad faith in order to avoid paying him his Compensation Upon Termination (Count I). When facing a claim that does not arise under the Constitution or the laws of the United States, a federal court must apply the substantive law of the forum in which it sits, including that state’s eonflict-of-laws provisions. See Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941). This principal applies with equal force to a state-law claim brought under supplemental jurisdiction, such as this. See Bi-Rite Enters., Inc. v. Bruce Miner Co., 757 F.2d 440, 442 (1st Cir.1985) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966)). Thus, we must determine what law a Massachusetts court would apply. If two contracting parties express “a specific intent as to the governing law, Massachusetts courts will uphold the parties’ choice as long as the result is not contrary to public policy and as long as the designated State has some substantial relation to the contract.” See Steranko v. Inforex, Inc., 5 Mass.App.Ct. 253, 362" }, { "docid": "15441905", "title": "", "text": "before this court, Boeing conceded that if Washington law defines cause, the district court erred in not removing both Boeing employees from the panel. We must first determine if Washington law applies in this case. II Federal courts apply the principles of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), to pendent state law claims. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1478 (9th Cir.1995) (Mangold). This case requires us to decide whether state law or a section of the United States Code applies. We review the district court’s decision regarding this question de novo. Mangold, 67 F.3d at 1478. In an analogous case, Stewart Organization v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (Stewart Organization), the United States Supreme Court outlined the proper analysis. There, the Court had to decide “whether a federal court sitting in diversity should apply state or federal law in adjudicating a motion to transfer a case to a venue provided in a contractual forum-selection clause.” Id. at 24, 108 S.Ct. at 2240-41. As the Court stated, the “decision whether to ápply a federal statute [instead of state law] involves a considerably less intricate analysis than that which governs the ‘relatively unguided Erie choice.’ ” Id. at 26, 108 S.Ct. at 2242, quoting Hamna v. Plumer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1144, 14 L.Ed.2d 8 (1965) (Hanna). “[W]hen the federal law sought to be applied is a congressional statute, the first and chief question for the district court’s determination is whether the statute is ‘sufficiently broad to control the issue before the Court.’ ” Id. at 26, 108 S.Ct. at 2242 (citations omitted). In other words, we apply federal law when it is “sufficiently broad to cover the point in dispute. It would make no sense for the supremacy of federal law to wane precisely because there is no state law directly on point.” Id. at 26 n. 4,108 S.Ct." }, { "docid": "11549234", "title": "", "text": "137, 138 (5th Cir.1991). In a diversity action, a federal court must apply the choice of law rules of the state in which it sits. Klaxon Co. v. Stentor Elec. Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Where a transferee court presides over several diversity actions consolidated under the multidistriet rules, the- choice of law rules of each jurisdiction in which the transferred actions were originally filed must be applied. Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); 28 U.S.C. § 1407. Both Texas and Florida have adopted the same choice of law rules: the Most Significant Relationship test set forth in Sections 6 and 145 of the Restatement (Second) of Conflict of Laws (the “Restatement”). See Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex.1979); Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla.1980). Under this doctrine, a court, subject to constitutional constraints, must apply the law of the state with the most significant relationship to the particular substantive issues before the court. Because both parties agree that either Texas or Georgia law apples, this Court’s inquiry is limited to the substantive law of those two states. See Mitchell v. Lone Star Ammunition, Inc., 913 F.2d 242, 249 (5th Cir.1990); Crisman v. Cooper Industries, 748 S.W.2d 273, 276 (Tex. App.-Dallas 1988). All of the causes of action in this case rely on the same theory of liability: the defective manufacture and design of the electrical system in the pylon. Therefore, the district court correctly determined that the only substantive issue for the purpose of conflicts analysis was the alleged design defect. See e.g., Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.1984). 2. The Most Significant Relationship Analysis Restatement Section 6 contains the general principles involved in the conflicts analysis whereas Restatement Section 145 lists the factual matters to be considered when applying the Section 6 principles to a given case. See Crisman, 748 S.W.2d at 276. The application of the most significant relationship test turns on the qualitative nature of the contacts rather than" }, { "docid": "17759045", "title": "", "text": "on an ultrahazardous activity theory. Plaintiffs seek to bring their claims within this court’s jurisdiction either on the basis of diversity between the litigants (28 U.S.C. § 1332), or on the basis of the judicially created doctrine of pendent jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), requires this court to apply the substantive law of the forum state when adjudicating state claims before it under its diversity jurisdiction: L.Ed.2d 218 (1966). “Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.” 304 U.S. at 78, 58 S.Ct. at 822, 82 L.Ed. at 1194. The rule of Erie applies with equal force to pendent state claims before the federal courts; and the law of the forum state must govern substantive issues. Flexitized, Inc. v. National Flexitized Corp., 335 F.2d 774 (2nd Cir. 1964), cert. denied 380 U.S. 913, 85 S.Ct. 899, 13 L.Ed.2d 799 (1965); Kristiansen v. John Mullins & Sons, Inc., 59 F.R.D. 99 (N.Y.1973); Saylor v. Lindsley, 302 F.Supp. 1174 (N.Y.1969); Briskin v. Glickman, 267 F.Supp. 600 (N.Y.1967); Mintz v. Allen, 254 F.Supp. 1012 (N.Y.1966). See also Maternally Yours v. Your Maternity Shop, 234 F.2d 538 (2nd Cir. 1956). Therefore, this court must apply California law in adjudicating Southern Pacific’s motion to dismiss the plaintiffs’ state strict liability claims. While applying the law of the forum state, this court must also apply the choice of law rules of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Under California choice of law analysis, the forum always applies its own law; but where a litigant has timely invoked the law of a foreign state, a California court may look to the law of other jurisdictions for the appropriate rule to be applied in the case before it. Hurtado v. Superior Court, 11 Cal.3d 574, 114 Cal.Rptr. 106, 522 P.2d 666 (1974)." }, { "docid": "7273525", "title": "", "text": "F.2d 586, 593 (5th Cir.1982). IV We now turn to a discussion of the proper application of state law and the interests that the states of Texas and New York have in this case. The excess carriers asked the district court to apply New York law. The district court refused to do so, reasoning that it was not required to make a choice of applicable law because “the basic principles of policy construction in each jurisdiction are the same.” 682 F.Supp. at 1406. This was error. As will be seen, the law of New York is both fairly well developed and different from the law of Texas. Also, in those areas where the law of New York is unclear, it could arguably be resolved differently from Texas, and it is certainly in the interest of New York for New York courts to determine its law. Where the law of different jurisdictions is in direct conflict, or where the law is unclear, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), dictates that the district court apply state law, not some general law of construction, and in order to do so the district court must choose the law of one state that is most properly applied to the dispute before it. The Texas law of conflicts, the state in which the district court sits, governs the substantive issues here. See Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); NCH Corp. v. Broyles, 749 F.2d 247 (5th Cir.1985); Stuart v. Spademan, 772 F.2d 1185, 1195 (5th Cir.1985). Under Texas choice-of-law principles, contract disputes are governed by “the law of the state with the most significant relationship to the particular substantive issue.” Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.1984). Our issues revolve around the construction and application of insurance policies. New York has the most significant relationship to the substantive issues in this case. Grace and three of the insurers maintain their principal places of business in New York. At least one other insurer also" } ]

[ { "docid": "22920191", "title": "", "text": "device was in accordance with Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 4 USPQ2d 1737 (Fed.Cir.1987) (en banc), cert. denied, 485 U.S. 961, 108 S.Ct. 1226, 99 L.Ed.2d 426 (1988). No error was assigned to this instruction at the time of trial. In the absence of timely objection, Fed.R.Civ.P. 51, and indeed in the absence of error in the instruction, this argument too is devoid of substance. West Bend points to the differences of its device from that patented by Presto, and Presto points to the similarities. Before the jury there was extensive evidence and argument on how the patented and the accused devices were constructed and operated, overall as well as with respect to each claim element. This evidence required evaluation and weighing by the trier of fact, in determining the question of equivalency. That is the procedure that was here followed. 3. West Bend’s Patent West Bend argues that its vegetable slicing device can not be equivalent to Presto’s patented invention, as a matter of law, because West Bend obtained its own patent on its device. West Bend stresses that the patent examiner cited Presto’s ’286 patent as prior art, when granting a patent to West Bend. The grant of a separate patent on the accused device does not automatically avoid infringement, either literal or by equivalency. Improvements or modifications may indeed be separately patentable if the requirements of patentability are met, yet the device may or may not avoid infringement of the prior patent. See, e.g., Atlas Powder Co. v. E.I. DuPont de Nemours & Co., 750 F.2d 1569, 1580-81, 224 USPQ 409, 417 (Fed.Cir.1984) (improvement in a step of a patented process, although separately patentable, did not avoid infringement under the doctrine of equivalents). Whether a modified device is within the scope of the prior patent, literally or by equivalency, depends on the particular facts. The fact of separate patentability is relevant, and is entitled to due weight. However, West Bend’s statement that there can not be infringement as a matter of law is incorrect. Presto states that only the first page of the West" } ]

[ { "docid": "16251248", "title": "", "text": "Powder Co., 750 F.2d at 1580), cert. denied, 532 U.S. 972, 121 S.Ct. 1603, 149 L.Ed.2d 469 (2001). Therefore, a court may properly exclude evidence of separate patentability on the question of equivalence on relevance or other grounds. Id. Nor does such evidence necessarily outweigh substantial evidence supporting a finding of infringement. Hoechst Celanese Corp., 78 F.3d at 1582. Recognizing that the court may exclude evidence of separate patentability on relevance or other grounds, see Fiskars, Inc., 221 F.3d at 1324, the court will consider the relevance of the proffered evidence of separate patentability of the Krisko patent to questions at issue in this litigation, as well as whether any relevance of that evidence is outweighed by other considerations of admissibility. b. Relevance to literal infringement First, the court must settle the disputed question of whether evidence of \"separate patentability\" is relevant to both literal infringement and infringement under the doctrine of equivalents, or only to the latter. Donaldson argues that \"separate patentability\" is relevant to both literal infringement and infringement under the doctrine of equivalents. For this proposition, Donaldson relies primarily on Giese v. Pierce Chem. Co., 43 F.Supp.2d 98, 111 a. 13 (D.Mass.1999) (\"Patentable separateness is relevant to the infringement inquiry in that it is a factor to be considered when comparing the accused device to the plaintiffs device under the doctrine of literal infringement or the doctrine of equivalents. See, e.g., Zygo Corp. v. Wyko Corp., 79 F.3d 1563, 1570 (Fed. Cir.1996); National Presto Indus., Inc. v. West Bend Co., 76 F.3d 1185, 1192 (Fed. Cir.1996) (noting that in the infringement inquiry, `[t]he fact of separate patentability is relevant, and is entitled to due weight.').\"). The main problem with this contention is that neither of the cases cited in Giese stands for the proposition that \"separate patentability\" is relevant to literal infringement. Rather, in both Zygo Corporation and National Presto Industries, the court discussed \"separate patent-ability\" only in connection with its discussion of infringement under the doctrine of equivalents. See Zygo Corp., 79 F.3d at 1568-70; National Presto Indus., inc., 76 F.3d at 1190-91. This court finds" }, { "docid": "11572978", "title": "", "text": "or their equivalents.” Mas-Hamilton, 156 F.3d at 1212 (emphasis added). Thus, the accused device need not utilize a precisely identical structure to accomplish its function; instead, the court’s inquiry under § 112, ¶ 6 focuses upon whether the accused device is structurally equivalent to the patented product. Comparing plaintiffs and defendant’s respective products, the court concludes that the markings found on the accused device constitute the structural equivalents of those found on the patented product. Indeed, the markings on both devices not only perform the same function, i.e., both teach how to place one’s fingers on the ball so as to throw certain types of pitches, but also they perform that same function using equivalent structures, i.e., color-coded markings on a baseball which, when viewed by the student, allow the student to discern precisely how to orient the ball within his or her hand. Although the markings on defendant’s ball are shaped somewhat differently than those found on plaintiffs product, the court concludes that the difference is insubstantial: an elongation of the finger indicia, coupled with “blunting” the ends of each mark, as opposed to tapering them, adds nothing of significance to the structure disclosed in plaintiffs patent specification. Both types of indicia show the student precisely how to grip the baseball, and the difference between the structure used to accomplish this function is, at best, an insignificant alteration. Thus, because the court concludes that the markings on the accused device are the structural equivalents of those found on plaintiffs product, the court grants summary judgment in favor of plaintiff and denies summary judgment for defendant on the issue of infringement. B. Anticipation Pursuant to 35 U.S.C. § 102, a patent is invalid if it is anticipated by the prior art. 35 U.S.C. § 102. “A judgment of invalidity for anticipation requires that a single prior art reference disclose every limitation in a patent claim.” General Elec. Co. v. Nintendo Co., Ltd., 179 F.3d 1350, 1356 (Fed.Cir.1999). Whether a prior art reference anticipates a patent claim is a question of fact. Hoover Group, Inc. v. Custom Metalcraft, Inc., 66 F.3d" }, { "docid": "3093378", "title": "", "text": "are moved together. When properly aligned, the four dots coalesce into a single spot, which means they are aligned along the optical axis of the interferometer. In the view mode, both the original and redesigned Wyko 6000 systems included a rotating ground glass screen positioned in front of a continuous zoom lens. Similar in purpose to the moveable screen in the Zygo interferometer, the rotating ground glass screen functioned to eliminate spurious fringe patterns. There is no dispute that the Wyko devices meet the limitations respecting the view mode. Procedural History The court entered its Findings of Fact and Conclusions of Law on March 3, 1993, holding the ’473 patent was neither invalid (1) for lack of an enabling disclosure or (2) for failing to disclose the best mode, nor was the patent unenforceable for inequitable conduct before the Patent Office. While none of the accused Wyko devices were found to literally infringe the ’473 patent, the court concluded that all versions of the accused Wyko devices infringed under the doctrine of equivalents. The damages phase of the trial was similarly tried to the bench, after which the court entered its Findings of Fact and Conclusions of Law and awarded Zygo over $2.1 million in total lost profits and a reasonable royalty. The court also awarded prejudgment interest in the amount of $532,755.04. On appeal, Wyko alleges the district court erred in the finding that the accused devices infringed the ’473 patent under the doctrine of equivalents, and in concluding that the ’473 patent was not invalid for failure to disclose the best mode. Wyko also challenges the award of damages calculated as lost profits. II. Best Mode Compliance with the best mode re quirement of 35 U.S.C. § 112 ¶ 1 is a question of fact. Scripps Clinic & Research Found. v. Genentech, Inc., 927 F.2d 1565, 1578, 18 USPQ2d 1001, 1012 (Fed.Cir.1991). In this case, which was tried to the bench, the court’s finding that there was no violation of section 112 is reviewed under the clearly erroneous standard. Spectra-Physics, Inc. v. Coherent, Inc., 827 F.2d 1524, 1535-36," }, { "docid": "12315147", "title": "", "text": "limitation-by-limitation basis. Texas Instruments, Inc. v. Cypress Semiconductor Corp., 90 F.3d 1558, 1566 (Fed.Cir.1996). 195. Equivalency must be proven with particularized testimony and linking argument as to the insubstantiality of differences for each claim element. Texas Instruments, Inc. v. Cypress Semiconductor Corp., 90 F.3d 1558, 1566 (Fed.Cir.1996), reaffirming Lear Siegler, Inc. v. Sealy Mattress Co., 873 F.2d 1422 (Fed.Cir.1989). 196. The vantage point for assessing the substantiality of differences is one of ordinary skill in the relevant art. Hilton Davis Chem. Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 1519 (Fed.Cir.1995) {en banc), cert. granted, 516 U.S. 1145, 116 S.Ct. 1014, 134 L.Ed.2d 95 (1996). The test is objective, with proof of the substantiality of differences resting on objective evidence. Sofamor Danek Group, Inc. v. DePuy-Motech, Inc., 74 F.3d 1216, 1222 (Fed.Cir.1996). 197. In determining equivalency, several factors may be considered, including whether the accused infringer obtained its own patent on the accused device; whether the accused infringer has copied the patented product; whether the accused infringer created its own product by independent development; whether persons reasonably skilled in the art would have known of the interchangeability of a part contained in the patent; and whether the accused and claimed invention performed substantially the same function in substantially the same way to yield substantially the same result. Hilton Davis Chem. Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 1518-19 (Fed.Cir.1995) (en banc), cert. granted, 516 U.S. 1145, 116 S.Ct. 1014, 134 L.Ed.2d 95 (1996). a. The ’290 Patent . 198. The fact that the accused X-07 lock was found patentable over the asserted ’656 patent demonstrates the substantiality of differences between the claimed and accused devices. Zygo Corp. v. Wyko Corp., 79 F.3d 1563, 1570 (Fed.Cir.1996); National Presto Industries, Inc. v. West Bend Co., 76 F.3d 1185, 1192 (Fed.Cir.1996). 199. On January 30,1996, the ’290 patent issued. PX 103. That patent discloses and claims the mechanical mechanism in the X-07 lock. The Patent Examiner of the ’290 patent was the same examiner (Lloyd A. Gall) who examined the ’656 patent. During the prosecution of the ’290 patent application, the Patent Examiner cited" }, { "docid": "12315145", "title": "", "text": "banc), cert. granted, 516 U.S. 1145, 116 S.Ct. 1014, 134 L.Ed.2d 95 (1996). In order to show infringement under the doctrine of equivalents, LaGard has the burden to show no more than an insubstantial difference between the claimed invention and the X-07 lock. Hilton Davis Chem. Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 1521-2 (Fed.Cir.1995) (en banc), cert. granted, 516 U.S. 1145, 116 S.Ct. 1014, 134 L.Ed.2d 95 (1996); Graver Tank & Mfg. Co. v. Linde Air Prods., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950); Litton Systems, Inc. v. Honeywell, Inc., 87 F.3d 1559, 1571 (Fed.Cir.1996) (an accused product that does not literally infringe a claim may infringe if it has insubstantial changes from the patented device). The purpose of the doctrine of equivalents is to prevent others from avoiding the patent by merely making unimportant and insubstantial changes and substitutions in the patent. Alpex Computer Corp. v. Nintendo Co., Ltd., 102 F.3d 1214, 40 U.S.P.Q.2d 1667, 1672 (Fed.Cir.1996). However, merely because the accused product performs the same general function to achieve the same result as the required element does not establish their equivalency; the result must be achieved in substantially the same way. Zygo v. Wyko Corp., 79 F.3d 1563, 1569 (Fed.Cir.1996). Thus, an equivalent of a claim limitation cannot substantially alter the manner of performing the claimed function. Dolly, Inc. v. Spalding & Evenflo Co., 16 F.3d 394, 400 (Fed.Cir.1994). 193. Under the doctrine of equivalents, there can be no infringement as a matter of law if a claim limitation is totally missing from the accused device. General American Transportation Corp. v. Cryo-Trans, Inc., 93 F.3d 766, 771 (Fed.Cir.1996). Further, the doctrine of equivalents is not a license to ignore or erase structural and functional claim limitations on which the public is entitled to rely in avoiding infringe ment. Athletic Alternatives, Inc. v. Prince Mfg., Inc., 73 F.3d 1573, 1582 (Fed.Cir.1996). Thus, as demonstrated above, Mas-Hamilton cannot infringe, even under the doctrine of equivalents, those claims for which there is not a corresponding element in the X-07 lock. 194. Equivalency must be proved on a" }, { "docid": "2669926", "title": "", "text": "that “[a] substitution in a patented invention cannot be both nonobvious and insubstantial.” 79 F.3d 1112, 1128 (Fed.Cir.1996) (Nies, J., additional views). These passages, however, cannot reasonably be read to require proof of equivalency by clear and convincing evidence in cases of separate patentability. Rather, these statements indicate that where, as here, the alleged equivalent is claimed in a separate patent, this fact, when weighed by the fact-finder together with all other relevant evidence, may make equivalency “considerably more difficult to make out” by a preponderance of the evidence. The issue of infringement by a separately patented equivalent was addressed in the Supreme Court decision of Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 50 S.Ct. 9, 74 L.Ed. 147 (1929). In that case, the patent in suit, filed by Winters and Crampton, claimed an improved refrigerator door latch that automatically locked as the door closed. Id. at 36-37, 50 S.Ct. 9. The allegedly infringing door latch was covered by a later-issued U.S. patent to Schrader. In its opinion, the Court first acknowledged that the accused device did not literally infringe the narrow claims of the Winters and Crampton patent. Id. at 41, 50 S.Ct. 9. The Court then proceeded to apply the function-way-result test to the accused device and found infringement by equivalence. Id. at 41-42. The Court held that infringement cannot be avoided in a device that has “no substantial departure” from the claimed invention. Id. at 42, 50 S.Ct. 9. The Court further noted: “Nor is the infringement avoided ... by any presumptive validity that may attach to the Schrader patent by reason of its issuance after the Winters and Crampton patent.” Id. at 43, 50 S.Ct. 9. The Court thus found equivalence in the face of separate patentability without imposing a heightened evidentiary burden. The passage in Festo relied on by SaintGobain includes citations of numerous cases in which we, like the Court in Sanitary Refrigerator, rejected arguments that separate patentability warrants anything more than consideration of this fact together with all others weighing for and against equivalency. Festo, 493 F.3d at 1379 n. 8 (citing" }, { "docid": "16251249", "title": "", "text": "equivalents. For this proposition, Donaldson relies primarily on Giese v. Pierce Chem. Co., 43 F.Supp.2d 98, 111 a. 13 (D.Mass.1999) (\"Patentable separateness is relevant to the infringement inquiry in that it is a factor to be considered when comparing the accused device to the plaintiffs device under the doctrine of literal infringement or the doctrine of equivalents. See, e.g., Zygo Corp. v. Wyko Corp., 79 F.3d 1563, 1570 (Fed. Cir.1996); National Presto Indus., Inc. v. West Bend Co., 76 F.3d 1185, 1192 (Fed. Cir.1996) (noting that in the infringement inquiry, `[t]he fact of separate patentability is relevant, and is entitled to due weight.').\"). The main problem with this contention is that neither of the cases cited in Giese stands for the proposition that \"separate patentability\" is relevant to literal infringement. Rather, in both Zygo Corporation and National Presto Industries, the court discussed \"separate patent-ability\" only in connection with its discussion of infringement under the doctrine of equivalents. See Zygo Corp., 79 F.3d at 1568-70; National Presto Indus., inc., 76 F.3d at 1190-91. This court finds more persuasive Donaldson's argument that separate patenta-bility is relevant to literal infringement of a means-plus-function claim, because literal infringement of such a claim does involve the question of \"equivalent\" struc- tares, and hence “substantial” or “insubstantial” differences in the structure of the accused device. See Lockheed Martin Corp., 324 F.3d at 1320 (“Literal infringement of a § 112 ¶ 6 claim requires that the relevant structure in the accused device perform the identical function recited in the claim and be identical or equivalent to the corresponding structure in the specification.”) (emphasis added); 35 U.S.C. § 112, ¶ 6 (a claim “shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof”) (emphasis added). Therefore, the court concludes that separate patentability is at least generally relevant to both literal and doctrine of equivalents infringement of a means-plus-function claim, and to doctrine of equivalents infringement of other claims. c. Relevance of the proffered evidence of separate patentability Notwithstanding such general relevance of “separate patentabiliy,” EPC makes several arguments that evidence" }, { "docid": "16251247", "title": "", "text": "the West Bend patent was of record at trial, and that West Bend presented no evidence concerning the subject matter of its patent. Such evidence when present warrants consideration by the trier of fact, along with the other evidence of the differences and similarities of the patented and accused devices. National Presto Indus., Inc. v. West Bend Co., 76 F.3d 1185, 1191-92 (Fed.Cir.1996). In short then, \"[t]he nonobviousness of the accused device, evidenced by the grant of a United States patent, is relevant to the issue of whether the change therein is substantial.\" Zygo Corp. v. Wyko Corp., 79 F.3d 1563, 1570 (Fed.Cir.1996). Nevertheless, \"[t]he fact of separate patentability presents no legal or evi-dentiary presumption of noninfringement.\" Hoechst Celanese Corp. v. BP Chems., Ltd., 78 F.3d 1575, 1582 (Fed.Cir.), cert. denied, 519 U.S. 911, 117 S.Ct. 275, 136 L.Ed.2d 198 (1996). To put it another way, \"it is well established that separate patentability does not avoid equivalency as a matter of law.\" Fiskars, Inc. v. Hunt Mfg. Co., 221 F.3d 1318, 1324 (Fed.Cir.2000) (citing Atlas Powder Co., 750 F.2d at 1580), cert. denied, 532 U.S. 972, 121 S.Ct. 1603, 149 L.Ed.2d 469 (2001). Therefore, a court may properly exclude evidence of separate patentability on the question of equivalence on relevance or other grounds. Id. Nor does such evidence necessarily outweigh substantial evidence supporting a finding of infringement. Hoechst Celanese Corp., 78 F.3d at 1582. Recognizing that the court may exclude evidence of separate patentability on relevance or other grounds, see Fiskars, Inc., 221 F.3d at 1324, the court will consider the relevance of the proffered evidence of separate patentability of the Krisko patent to questions at issue in this litigation, as well as whether any relevance of that evidence is outweighed by other considerations of admissibility. b. Relevance to literal infringement First, the court must settle the disputed question of whether evidence of \"separate patentability\" is relevant to both literal infringement and infringement under the doctrine of equivalents, or only to the latter. Donaldson argues that \"separate patentability\" is relevant to both literal infringement and infringement under the doctrine of" }, { "docid": "12315146", "title": "", "text": "the same result as the required element does not establish their equivalency; the result must be achieved in substantially the same way. Zygo v. Wyko Corp., 79 F.3d 1563, 1569 (Fed.Cir.1996). Thus, an equivalent of a claim limitation cannot substantially alter the manner of performing the claimed function. Dolly, Inc. v. Spalding & Evenflo Co., 16 F.3d 394, 400 (Fed.Cir.1994). 193. Under the doctrine of equivalents, there can be no infringement as a matter of law if a claim limitation is totally missing from the accused device. General American Transportation Corp. v. Cryo-Trans, Inc., 93 F.3d 766, 771 (Fed.Cir.1996). Further, the doctrine of equivalents is not a license to ignore or erase structural and functional claim limitations on which the public is entitled to rely in avoiding infringe ment. Athletic Alternatives, Inc. v. Prince Mfg., Inc., 73 F.3d 1573, 1582 (Fed.Cir.1996). Thus, as demonstrated above, Mas-Hamilton cannot infringe, even under the doctrine of equivalents, those claims for which there is not a corresponding element in the X-07 lock. 194. Equivalency must be proved on a limitation-by-limitation basis. Texas Instruments, Inc. v. Cypress Semiconductor Corp., 90 F.3d 1558, 1566 (Fed.Cir.1996). 195. Equivalency must be proven with particularized testimony and linking argument as to the insubstantiality of differences for each claim element. Texas Instruments, Inc. v. Cypress Semiconductor Corp., 90 F.3d 1558, 1566 (Fed.Cir.1996), reaffirming Lear Siegler, Inc. v. Sealy Mattress Co., 873 F.2d 1422 (Fed.Cir.1989). 196. The vantage point for assessing the substantiality of differences is one of ordinary skill in the relevant art. Hilton Davis Chem. Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 1519 (Fed.Cir.1995) {en banc), cert. granted, 516 U.S. 1145, 116 S.Ct. 1014, 134 L.Ed.2d 95 (1996). The test is objective, with proof of the substantiality of differences resting on objective evidence. Sofamor Danek Group, Inc. v. DePuy-Motech, Inc., 74 F.3d 1216, 1222 (Fed.Cir.1996). 197. In determining equivalency, several factors may be considered, including whether the accused infringer obtained its own patent on the accused device; whether the accused infringer has copied the patented product; whether the accused infringer created its own product by independent development; whether persons" }, { "docid": "20031895", "title": "", "text": "the heart of an invention by making insubstantial changes that avoid the literal scope of the claims, Courts frequently use the function-way-result test; namely, “whether the substitute element matches the function, way, and result of the claimed element, or whether the substitute element plays a role not substantially different from the claimed element.” Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 40, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). ii. Legal Analysis. It is significant that the accused device in this case was granted a separate patent, and that the Patent Examiner, before granting the Burman Patent, had carefully reviewed the Viken Patent. The fact that a second patent was issued over the prior art may be relevant to whether the differences between the accused device and the patent-in-suit are substantial. See, Roton Barrier, Inc. v. Stanley Works, 79 F.3d 1112, 1128 (Fed.Cir.1996) (Nies, J., additional views); National Presto Industries, Inc. v. West Bend Co., 76 F.3d 1185, 1191 (Fed.Cir.1996). However, “[t]he grant of a separate patent on the accused device does not automatically avoid infringement, either literally or by equivalency.” National Presto Industries, Inc. v. West Bend Co., supra at 1192. It is, therefore, only a factor to be considered, and is not dispositive of the issue. What is more significant to our infringement analysis is that Claim 13, like the other claims of the Viken Patent, is composed in a “means plus function” format. The Court construes Claim 13, in light of the corresponding structure illustrated in Fig. 3, and the related text in the specification, to claim all of the elements of Claim 1, and to further claim that the “means for equalizing the flow is comprised of means” consisting of a flexible, rubber-like diaphragm, which exhibits “resilient characteristics for exerting a force, related to the pressure existing in the fluid circulation circuit,” upon the automatic transmission fluid in the fluid source. See, Viken Patent, col. 8, 55-61. Where the patent claim that is allegedly being infringed is a “means plus function” claim, governed by Section 112, paragraph 6, the infringement analysis takes on a" }, { "docid": "16251246", "title": "", "text": "own patent on its device. West Bend stresses that the patent examiner cited Presto’s ’286 patent as prior art, when granting a patent to West Bend. The grant of a separate patent on the accused device does not automatically avoid infringement, either literal or by equivalency. Improvements or modifications may indeed be separately patentable if the requirements of patenta-bility are met, yet the device may or may not avoid infringement of the prior patent. See, e.g., Atlas Powder Co. v. E.I. du Pont De Nemours & Co., 750 F.2d 1569, 1580-81, 224 USPQ 409, 417 (Fed.Cir.1984) (improvement in a step of a patented process, although separately patentable, did not avoid infringement under the doctrine of equivalents). Whether a modified device is within the scope of the prior patent, literally or by equivalency, depends on the particular facts. The fact of separate patentability is relevant, and is entitled to due weight. However, West Bend’s statement that there can not be infringement as a matter of law is incorrect. Presto states that oniy the first page of the West Bend patent was of record at trial, and that West Bend presented no evidence concerning the subject matter of its patent. Such evidence when present warrants consideration by the trier of fact, along with the other evidence of the differences and similarities of the patented and accused devices. National Presto Indus., Inc. v. West Bend Co., 76 F.3d 1185, 1191-92 (Fed.Cir.1996). In short then, \"[t]he nonobviousness of the accused device, evidenced by the grant of a United States patent, is relevant to the issue of whether the change therein is substantial.\" Zygo Corp. v. Wyko Corp., 79 F.3d 1563, 1570 (Fed.Cir.1996). Nevertheless, \"[t]he fact of separate patentability presents no legal or evi-dentiary presumption of noninfringement.\" Hoechst Celanese Corp. v. BP Chems., Ltd., 78 F.3d 1575, 1582 (Fed.Cir.), cert. denied, 519 U.S. 911, 117 S.Ct. 275, 136 L.Ed.2d 198 (1996). To put it another way, \"it is well established that separate patentability does not avoid equivalency as a matter of law.\" Fiskars, Inc. v. Hunt Mfg. Co., 221 F.3d 1318, 1324 (Fed.Cir.2000) (citing Atlas" }, { "docid": "6923620", "title": "", "text": "law. While the presumption of validity is by no means conclusive, it is strengthened where, as here, the Court finds that the patents upon which defendants rely (Smith, 2,487,684; Burch, 2,402,312; Dederick, 2,054,558; and Spencer, 1,448,240; 1,697,886; 1,711,430; 1,776,012; 1,883,252; 1,939,286; 1,602,510; 1,813,776), fail to add anything to the prior art disclosures considered by the patent office during prosecution of the applications that resulted in the issuance of the 023 patent. See Williams Mfg. Co. v. United Shoe Mach. Corporation, 121 F.2d 273, 277 (6 Cir. 1941). It remains to consider whether the accused device infringes the claims of the patent in suit, and whether the doctrine of file wrapper estoppel has any application to the facts of the case. The burden of proving infringement rests upon plaintiffs. General Chemical Co. v. Selden Co., 60 F.2d 144, 150 (W.D.Pa.1932). Defendants take the position that the claims of the patent in suit are limited to a combination of specific elements arranged in a particular manner, which are not found in the accused device; that file wrapper estoppel prevents plaintiffs from broadening the claims to cover the accused device because of the abandonment and amendment of claims during patent office prosecution; and that since the accused device does not read upon the claims, and does not function in the same manner specified in the patent to produce the same result, there is no infringement. Plaintiffs argue that defendants utilize the principle of the invention of the 023 patent and infringe the claims under the equitable doctrine of equivalents, and that nothing that transpired in the patent office proceedings estops them from resorting to that doctrine. The accused device follows generally the teachings of the claims in issue. It is constructed and operates as a flasher switch substantially as described in the 023 patent. The patent document teaches the application of the principle of the Schmidinger invention to a flasher switch that can be made to operate as an automobile directional signaling device. Reference has already been made in this opinion to the specific language of the specifications relating to “a flasher for" }, { "docid": "1322819", "title": "", "text": "since the United States Patent and Trademark Office granted it a patent on its culturing process, the two processes must be so substantially different that the reverse doctrine of equivalents can justifiably be invoked. See, e.g., HMR/TKT’s Reply Br. After Trial at 28; HMR/TKT’s Proposed Findings of Fact ¶ 121. While attainment of a patent may aid in making a prima facie case in support of the reverse doctrine of equivalents, see, e.g., Jewish Hosp. of St. Louis v. IDEXX Laboratories, 973 F.Supp. 24, 28 (D.Me.1997) (finding a prima facie showing met when one of three facts asserted was that the process was patented), it does not necessarily equate to such a determination. See, e.g., Nat’l Presto Indus., Inc. v. West Bend Co., 76 F.3d 1185, 1191-92 (Fed.Cir.1996) (“The grant of a separate patent on the accused device does not automatically avoid infringement, either literal or by equivalency. Improvements or modifications may indeed be separately patentable if the requirements of patentability are met, yet the device may or may not avoid infringement of the prior patent.”); Atlas Powder Co. v. E.L.du Pont De Nemours & Co., 750 F.2d 1569, 1580-81 (Fed.Cir.1984) (finding equivalent infringement despite the fact that the accused device was separately patented). Thus, as Amgen contends, “patents are routinely granted for improvements in technology even though the practice of the technology would infringe an earlier issued patent.” Amgen’s Reply to HMR/TKT’s Opening Br. After Trial at 29; see also Lemley, Economics, supra, at 1009 (noting that “patenting an improvement does not prevent it from infringing on the original patent” and describing three situations where “an improvement which is nonobvious in view of the prior art can still infringe on a patent which is part of that prior art”); see also Merges & Nelson, supra, at 865 (“Issuance of an improvement patent or a holding that a' patent is valid but subservient to another patent is ... common.”). Indeed, here it appears that HMR/TKT’s patent consists of claims that are narrower but within the scope of Amgen’s broader patent since its claims relate to homologous recombinant cells comprising a" }, { "docid": "20031894", "title": "", "text": "Court compares those claims to the allegedly infringing device. See, Markman I, supra at 976; see also, Cordis v. SciMed Life Systems, Inc., 982 F.Supp. 1358, 1363 (D.Minn.1997). A patent owner may prevail on a claim of infringement on one of two theories: literal infringement, or the doctrine of equivalents. Generally, to show literal infringement, a patentee must prove that “every limitation recited in the claim is found in the accused device, i.e., [that] the properly construed claim reads on the accused device exactly.” Cole v. KimberlyClark Corp., 102 F.3d 524, 532 (Fed.Cir.1996), cert. denied, 522 U.S. 812, 118 S.Ct. 56, 139 L.Ed.2d 20 (1997); see also, Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1539 (Fed.Cir.1991) (“the failure to meet a single limitation is sufficient to negate infringement of the claim.”). Under the doctrine of equivalents, which the Courts apply to prevent “fraud on the patent,” Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950), by finding infringement where a party steals the heart of an invention by making insubstantial changes that avoid the literal scope of the claims, Courts frequently use the function-way-result test; namely, “whether the substitute element matches the function, way, and result of the claimed element, or whether the substitute element plays a role not substantially different from the claimed element.” Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 40, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). ii. Legal Analysis. It is significant that the accused device in this case was granted a separate patent, and that the Patent Examiner, before granting the Burman Patent, had carefully reviewed the Viken Patent. The fact that a second patent was issued over the prior art may be relevant to whether the differences between the accused device and the patent-in-suit are substantial. See, Roton Barrier, Inc. v. Stanley Works, 79 F.3d 1112, 1128 (Fed.Cir.1996) (Nies, J., additional views); National Presto Industries, Inc. v. West Bend Co., 76 F.3d 1185, 1191 (Fed.Cir.1996). However, “[t]he grant of a separate patent on the accused device does not" }, { "docid": "14005640", "title": "", "text": "respect” between the patent and the accused device. Graver Tank, 339 U.S. at 609, 70 S.Ct. at 857. Factors to consider in the inquiry include (i) the purpose for which an ingredient is used in a patent, (ii) the qualities it has when combined with the other ingredients, (iii) the function which it is intended to perform, (iv) whether the accused product resulted from independent research, and (iv) whether persons reasonably skilled in the art would have known of the interchangeability of an ingredient not contained in the patent with one that was. SRI Int’l, 775 F.2d at 1124. When a patentee establishes literal infringement, the accused infringer may undertake the burden of going forward to establish the fact of non-infringement under the reverse doctrine of equivalents. If the accused infringer makes a prima facie ease, the patentee, who retains the burden of persuasion on infringement, must rebut that prima facie case. SRI Int’l, 775 F.2d at 1123-24. Thus, where literal infringement has been established, a defense of non-infringement based on the reverse doctrine of equivalents may be raised by the accused infringer. The key issue of inquiry under the reverse doctrine of equivalents is whether the principle of the patent has been so far changed in the accused device that the accused device performs the function of the claimed invention in a substantially different way. SRI Int’l, 775 F.2d at 1124. Merely using a device, however, which meets the patent claims in a different way than that described in the patent specification does not preclude liability for infringement of the patent. Id. (“One who takes a claimed structure and merely uses it in a way that differs from that in which a specification-described embodiment uses it, does not thereby escape infringement.”). B. The Defendant’s Equivalency Contentions The defendant explicitly raises the defense of non-infringement under the reverse doc trine of equivalents, and contends that the APR II functions in a substantially different way from the 023 patent. According to the defendant, the principal objective of the 023 patent is to “more advantageously address the problem of proximal stress shielding" }, { "docid": "3093393", "title": "", "text": "standard.”). According to Wyko, the fact that the Wyko 6000 Redesign alignment system was patented demonstrates the substantiality of the differences between the claimed and accused devices. Wyko’s patent, against which the ’473 patent was cited and considered as prior art, is thus presumed nonobvious in view of the ’473 patent until proven otherwise. The nonobviousness of the accused device, evidenced by the grant of a United States patent, is relevant to the issue of whether the change therein is substantial. Roton Barrier, Inc. v. Stanley Works, 79 F.3d 1112, 37 USPQ2d 1816 (Fed.Cir.1996) (Nies, J., Additional Views); National Presto Indus., Inc. v. West Bend Co., 76 F.3d 1185, 1192, 37 USPQ2d 1685, 1689 (Fed.Cir.1996) (“The fact of separate patentability is relevant, and is entitled to due weight.”). In sum, the accused interferometer with the prism alignment system simply can not be deemed an insubstantial change from Zygo’s claimed interferometer with the reticle alignment system. Hilton Davis, 62 F.3d at 1518, 35 USPQ2d at 1645. Because the Redesign has no reticle for alignment or equivalent thereof, a limitation required by the claim is missing and there is no infringement. Pennwalt, 833 F.2d at 935, 4 USPQ2d at 1739-40; Athletic Alternatives, 73 F.3d at 1581, 37 USPQ2d at 1373. IV. Damages In view of the reversal of the finding that the Wyko 6000 Redesign infringed the ’473 patent, the damages award is vacated. The trial court’s analysis did not distinguish between the Original and the Redesign Wyko models in addressing the issues of lost profits, convoyed sales, and reasonable royalty, and it is unclear that the court’s findings are applicable to the Original Wyko alone. Un der these circumstances, we remand with instructions to recalculate the damages due Zygo for the infringement by the Original Wyko models. Lost Profits The central damages issue on appeal is whether the court erred in concluding that Wyko’s SIRIS interferometer was not an acceptable noninfringing alternative to the Zygo interferometers. The record indicates that Wyko stopped marketing the SIRIS interferometer when it began marketing the Wyko 6000 interferometer. Wyko argues that the award of lost" }, { "docid": "2669930", "title": "", "text": "the infringement analysis, does not merit a heightened evidentiary burden. See, e.g., Abraxis Biosci, 467 F.3d 1370, 1382 (Fed. Cir.2006) (affirming the district court’s finding of infringement by equivalence and stating that separate patentability of the accused pharmaceutical formulation did not outweigh substantial evidence of its equivalence); Fiskars, Inc. v. Hunt Mfg. Co., 221 F.3d 1318, 1324 (Fed.Cir.2000) (holding that the trial court judge did not err by withholding evidence of separate patentability from the jury, because “it is well established that separate patentability does not avoid equivalency as a matter of law”); Zygo Corp. v. Wyko Corp., 79 F.3d 1563, 1570 (Fed.Cir.1996) (“The nonobviousness of the accused device, evidenced by the grant of a United States patent, is relevant to the issue of whether the change therein is substantial.”). Saint-Gobain argues that proof by clear and convincing evidence is required on the facts of this case, because the jury’s finding of equivalence “construe tively invalidates” the '420 patent. We disagree with SainWGobain’s reasoning in several respects. First, patents are afforded a statutory presumption of validity under 35 U.S.C. § 282, and overcoming this presumption requires proof by clear and convincing evidence. See, e.g., Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1359-60 (Fed.Cir.2007); Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1375 (Fed.Cir.1986). Even if equivalence were relevant to obviousness, a point on which we need not and do not express an opinion, the jury properly found infringement under the equivalence doctrine by only a preponderance of the evidence. Thus, ipso facto, the jury’s finding could not invalidate the '420 patent, constructively or otherwise. Moreover, with regard to Sainb-Gobain’s contention that equivalence is tantamount to obviousness, we disagree. The two legal principles require different analytical frameworks. The doctrine of equivalents, although “not the prisoner of a formula,” Graver Tank, 339 U.S. at 609, 70 S.Ct. 854, typically involves application of the insubstantial differences test, usually via the function-way-result test. Obviousness, by contrast, requires analysis under the four Graham factors. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); accord KSR Int’l" }, { "docid": "3093392", "title": "", "text": "entirely different purpose. Further, using spots through and around the prism is a distinctly different “way” of achieving alignment from imaging spots directly from the diffuse screen to a monitor for alignment on a displayed reticle. Because the Redesign operates on different optical principles, the same “way” prong of the tripartite test has not been satisfied. Finally, for purposes of infringement under the doctrine of equivalents, the differences between the claimed device and the accused device must be insubstantial. Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 610, 70 S.Ct. 854, 857, 94 L.Ed. 1097 (1950); Singer Mfg. Co. v. Cramer, 192 U.S. 265, 286, 24 S.Ct. 291, 299, 48 L.Ed. 437 (1904); Hilton Davis Chem. Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 1518, 35 USPQ2d 1641, 1645 (Fed.Cir.1995) (in banc), cert. granted, - U.S. -, 116 S.Ct. 1014, 134 L.Ed.2d 95 (1996) (“[T]he application of the doctrine of equivalents rests on the sub-stantiality of the differences between the claimed and accused products or processes, assessed according to an objective standard.”). According to Wyko, the fact that the Wyko 6000 Redesign alignment system was patented demonstrates the substantiality of the differences between the claimed and accused devices. Wyko’s patent, against which the ’473 patent was cited and considered as prior art, is thus presumed nonobvious in view of the ’473 patent until proven otherwise. The nonobviousness of the accused device, evidenced by the grant of a United States patent, is relevant to the issue of whether the change therein is substantial. Roton Barrier, Inc. v. Stanley Works, 79 F.3d 1112, 37 USPQ2d 1816 (Fed.Cir.1996) (Nies, J., Additional Views); National Presto Indus., Inc. v. West Bend Co., 76 F.3d 1185, 1192, 37 USPQ2d 1685, 1689 (Fed.Cir.1996) (“The fact of separate patentability is relevant, and is entitled to due weight.”). In sum, the accused interferometer with the prism alignment system simply can not be deemed an insubstantial change from Zygo’s claimed interferometer with the reticle alignment system. Hilton Davis, 62 F.3d at 1518, 35 USPQ2d at 1645. Because the Redesign has no reticle for alignment or equivalent" }, { "docid": "2669929", "title": "", "text": "not automatically negate infringement.” Id. Moreover, in National Presto, we confirmed that “[t]he fact of separate patentability is relevant, and is entitled to due weight,” but does not confer any presumption of noninfringement; rather, “[s]uch evidence when present warrants consideration by the trier of fact, along with the other evidence of the differences and similarities of the patented and accused devices.” 76 F.3d at 1192. In Atlas Powder, we rejected the argument that the grant of a patent to an accused infringer constitutes a prima facie determination of nonequivalence. 750 F.2d at 1580. Instead, we endorsed the view that “ ‘[pjatentable difference does not of itself tend to negative infringement.’ ” Id. at 1581 (quoting Herman v. Youngstown Car Mfg. Co., 191 F. 579, 585 (6th Cir.1911)). None of these cases cited in Festo supports a requirement of proof of equivalency by clear and convincing evidence in cases involving separate patentability. Indeed, in other cases we have likewise indicated that separate patentability, while potentially relevant to the equivalence issue and deserving of due weight in the infringement analysis, does not merit a heightened evidentiary burden. See, e.g., Abraxis Biosci, 467 F.3d 1370, 1382 (Fed. Cir.2006) (affirming the district court’s finding of infringement by equivalence and stating that separate patentability of the accused pharmaceutical formulation did not outweigh substantial evidence of its equivalence); Fiskars, Inc. v. Hunt Mfg. Co., 221 F.3d 1318, 1324 (Fed.Cir.2000) (holding that the trial court judge did not err by withholding evidence of separate patentability from the jury, because “it is well established that separate patentability does not avoid equivalency as a matter of law”); Zygo Corp. v. Wyko Corp., 79 F.3d 1563, 1570 (Fed.Cir.1996) (“The nonobviousness of the accused device, evidenced by the grant of a United States patent, is relevant to the issue of whether the change therein is substantial.”). Saint-Gobain argues that proof by clear and convincing evidence is required on the facts of this case, because the jury’s finding of equivalence “construe tively invalidates” the '420 patent. We disagree with SainWGobain’s reasoning in several respects. First, patents are afforded a statutory presumption of" }, { "docid": "11573016", "title": "", "text": "finding of structural equivalence between the finger placement indicia on its product and those found on plaintiffs device necessarily renders plaintiff's patent invalid in light of the prior art. Def.Repl.SummJudg. on Infring. at 3 (\"In short, finger outline marks and egg shape marks cannot be structural equivalents, while still preserving validity of the patent in suit.\") The court disagrees. The infringement inquiry is separate and distinct from a patent validity analysis; a resolution of one issue does not dictate the outcome of the other. Indeed, a patent may be held to be infringed, but invalid as anticipatory or obvious over the prior art. If the court believed that no material fact issues remained as to whether the prior art references cited by de fendant as anticipatory and obvious invalidated the patent, defendant's contention would be correct. As detailed below, however, the court concludes that it cannot, as a matter of law, declare that the '193 patent was either anticipated or obvious over the prior art. . Both parties have addressed the issue of infringement under the doctrine of equivalents in their summary judgment papers. As a preliminary matter, the court notes that an infringement analysis under § 112, ¶6 is somewhat similar to an infringement determination under the doctrine of equivalents. See Valmont Industries, Inc. v. Reinke Mfg. Co., Inc., 983 F.2d 1039, 1043-44 (Fed.Cir.1993). The analyses are not, however, identical. Id. Indeed, whereas ”[s]ection 112, ¶ 6, limits the broad language of means-plus-function limitations in combination claims to equivalents of the structures, materials, or acts in the specification[,][t]he doctrine of equivalents equitably expands exclusive patent rights.” Id. The above-noted distinction between the doctrines notwithstanding, the line separating the two infringement inquiries has become somewhat blurred as a result of the Chiumi-natta decision. There, the court held that, absent a technological advance leading to the difference between the patented product and the accused device, a failure to find literal infringement under § 112, ¶ 6 may preclude a finding of infringement under the doctrine of equivalents. Chiuminatta, 145 F.3d at 1311. This holding appears to, for all practical purposes, transform" } ]

[ { "docid": "22668343", "title": "", "text": "strategic and tactical, which must be made before and during trial rests with the accused and his attorney.” 425 U. S., at 512. Mr. Chief Justice Burger, concurring. I concur fully in the judgment and in the Court’s opinion. I write separately to emphasize one point which, to me, seems of critical importance to this case. In my view, the “deliberate bypass” standard enunciated in Fay v. Noia, 372 U. S. 391 (1963), was never designed for, and is inapplicable to, errors — even of constitutional dimension — alleged to have been committed during trial. In Fay v. Noia, the Court applied the “deliberate bypass” standard to a case where the critical procedural decision— whether to take a criminal appeal — was entrusted to a convicted defendant. Although Noia, the habeas petitioner, was represented by counsel, he himself had to make the decision whether to appeal or not; the role of the attorney was limited to giving advice and counsel. In giving content to the new deliberate-bypass standard, Fay looked to the Court's decision in Johnson v. Zerbst, 304 U. S. 458 (1938), a case where the defendant had been called upon to make the decision whether to request representation by counsel in his federal criminal trial. Because in both Fay and Zerbst, important rights hung in the balance of the defendant’s own decision, the Court required that a waiver impairing such rights be a knowing and intelligent decision by the defendant himself. As Fay put it: “If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts . . . then it is open to the federal court on habeas to deny him all relief . . . .” 372 U. S., at 439. The touchstone of Fay and Zerbst, then, is the exercise of volition by the defendant himself with respect to his own federal constitutional rights. In contrast, the claim in the case before us relates to events during the trial itself. Typically, habeas petitioners claim that unlawfully secured evidence" } ]

[ { "docid": "22950109", "title": "", "text": "of the majority of the Court with these words from our 1982 decision in Vaughan v. Estelle, 671 F.2d 152, 153. “Rule 9(b) codifies the seminal case of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), with its guidelines concerning abuse of the writ.” Potts v. Zant, 638 F.2d 727, 739 (5th Cir.1981) (citations omitted). See Haley v. Estelle, 632 F.2d 1273 (5th Cir.1980). But, in this circuit, the “ ‘abuse of the Writ’ doctrine is of rare and extraordinary application.” Paprskar v. Estelle, 612 F.2d 1003, 1007 (5th Cir.), cert. denied, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 111 (1980) (citation omitted). See Hardwick v. Doolittle, 558 F.2d 292 (5th Cir.1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978); Simpson v. Wainwright, 488 F.2d 494 (5th Cir.1973). The doctrine is applied narrowly because, under this rubric, full consideration of the merits of a new petition is not necessary if the filing is found to be abusive. Our reluctance to invoke the rule, save in rare and extraordinary instances, was dramatized in Haley v. Estelle in which we noted that “The principle behind Rule 9(b) is to dismiss those petitions that constitute ‘needless piecemeal litigation’ or whose ‘purpose is to vex, harass, or delay.’ ” 632 F.2d at 1275 (quoting Sanders v. United States, 373 U.S. at 18, 83 S.Ct. at 1078). We in dissent can find no justification for this drastic departure from the established law concerning abuse of the writ which has developed out of the requirement of a showing of “deliberate withholding” of grounds, Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963), or a withholding of grounds resulting from “the considered choice of the petitioner”, Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963). A careful evaluation of the facts of this case reveals that there has been no abuse of the writ of habeas corpus under Rule 9(b), 28 U.S.C. foil. § 2254. This is the third federal petition for habe-as" }, { "docid": "23608347", "title": "", "text": "of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if, as in Wong Doo [v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999] the prison er deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay. Sanders v. United States, 373 U.S. at 17-18, 83 S.Ct. at 1078-79. Sanders also incorporated within the guidelines defining the nature of abuse of the writ the principles enunciated in Fay v. Noia, 372 U.S. at 438-440, 83 S.Ct. at 848-849, and Townsend v. Sain, 372 U.S. 293 at 317, 83 S.Ct. 745 at 759, 9 L.Ed.2d 770. Sanders v. United States, 373 U.S. at 18, 83 S.Ct. at 1078. The section of Fay v. Noia referred to by the Sanders Court announces the familiar rule that district judges may deny relief to an applicant who has deliberately bypassed the orderly procedure of state courts. The Court stated that the definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 — i. e., the intentional relinquishment or abandonment of a known right or privilege — was one necessary element inter alia in finding a deliberate bypass. Fay v. Noia, 372 U.S. at 438-39, 83 S.Ct. at 848—49. The principle found in the section of Townsend v. Sain referred to by the Sanders Court states that if “for any reason not attributable to the inexcusable neglect” of a state petitioner, evidence crucial to adequate determination of the constitutional claim was not developed in state court, a hearing in federal court is compelled. Townsend v. Sain, 372 U.S. at 317, 83 S.Ct. at 1078. Several broad principles in addition to those enunciated in Sanders, arising out of concern that abuse of the writ not" }, { "docid": "22610061", "title": "", "text": "and Rule 9(b) codify Sanders. To give content to “otherwise abus[e] the writ” as used in § 2244(b), we must look to Sanders. As I have explained, the Court in Sanders identified two broad classes of bad-faith conduct that bar adjudication of a claim not raised in a previous habeas application: the deliberate abandonment or withholding of that claim from the first petition; and the filing of a petition aimed at some purpose other than expeditious relief from unlawful confinement, such as “to vex, harass, or delay.” See ibid. By referring to second or successive applications from habeas petitioners who have “deliberately withheld the newly asserted ground or otherwise abused the writ,” § 2244(b) tracks this division. Congress may well have selected the phrase “otherwise abused the writ” with the expectation that courts would continue to elaborate upon the types of dilatory tactics that, in addition to deliberate abandonment of a known claim, constitute an abuse of the writ. But consistent with Congress’ intent to codify Sanders’ good-faith test, such elaborations must be confined to circumstances in which a petitioner’s omission of an unknown claim is conjoined with his intentional filing of a petition for an improper purpose, such as “to vex, harass or delay.” The majority tacitly acknowledges this constraint on the Court’s interpretive discretion by suggesting that “cause” is tantamount to “inexcusable neglect.” This claim, too, is untenable. The majority exaggerates when it claims that the “inexcusable neglect” formulation — which this Court has never applied in an abuse-of-the-writ decision — functions as an independent standard for evaluating a petitioner’s failure to raise a claim in a previous habeas application. It is true that Sanders compared its own analysis to the analysis in Townsend v. Sain, 372 U. S. 293 (1963), which established that a district court should deny an evidentiary hearing if the habeas petitioner inexcusably neglected to develop factual evidence in state proceedings. See id., at 317. Townsend, however, expressly equated “inexcusable neglect” with the “deliberate bypass” test of Fay v. Noia. See 372 U. S., at 317. But even if “inexcusable neglect” does usefully describe" }, { "docid": "22950104", "title": "", "text": "enacted, however, Fay’s reach had been substantially limited by Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965) —a precursor of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)— which' recognized the agency authority of an attorney to waive certain substantive rights of a criminal defendant at trial. Thus, when Congress was considering Rule 9(b), Sanders and Fay were not then being read by the Supreme Court in a manner which would always require personal waiver by a petitioner. But even if Congress read Sanders and Fay to limit the representative role of counsel, it does not follow that this limitation was engrafted into Rule 9(b). Sanders was the milestone case in which the Supreme Court explicitly enunciated a writ abuse doctrine. In this sense, Rule 9(b), the writ abuse statute, plainly codifies Sanders. However, we have never held that every hint or implication which may reasonably be perceived in Sanders is likewise embodied in Rule 9(b). Here, where one such possible ramification of Sanders would severely undercut the efficacy of Rule 9(b), logic impels us to hold that this ramification of Sanders cannot control our reading of the rule Congress has enacted. . This case does not present the question of whether a lawyer’s omission of a claim from an earlier writ petition may be excused by a later change in law which could have reasonably been anticipated. Relatedly, note the suggestion of Justice Blackmun that a state could require a petitioner to assert all claims in a single petition. Escape from a failure to do so would be measured by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Rose v. Lundy, 455 U.S. 509, 525 n. 2, 102 S.Ct. 1198, 1207 n. 2, 71 L.Ed.2d 379 (1982) (Blackmun, J., concurring in the judgment). . The standard for gauging effectiveness of counsel is now before the Supreme Court. Washington v. Strickland, 693 F.2d 1243 (5th Cir.1982), cert. granted, - U.S. -, 103 S.Ct. 2451, 77 L,Ed.2d 1332 (1983); United States v. Cronic, 675 F.2d 1126" }, { "docid": "22408588", "title": "", "text": "in original), and to adopt the rule of complete exhaustion in order to give “full effect to the objective of rule 9,” majority opinion at 357, the majority has turned Rule 9 on its head. For the rule of Rule 9(b) governing successive petitions is the rule of Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963): a federal court must consider on the merits a second or successive petition asserting previously unasserted grounds for relief unless the failure to assert the new grounds in the earlier petition constituted abuse of the writ. Abuse of the writ may be found only if the failure to litigate the new claim on the prior application constituted a deliberate bypass or waiver within the meaning of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Sanders v. United States, supra. Thus, while the Sanders standard strikes a balance between competing interest, the interest in considering all claims in a single proceeding and the interest in correcting constitutional error, the balance struck is one which precludes dismissal of second or successive petitions except in rare and extraordinary circumstances. Rule 9(b) authorizes the district courts to dismiss a second or successive petition asserting new grounds for relief if the judge “finds that the failure of the petitioner to assert those grounds in a prior petition constituted abuse of the writ.\" (Emphasis added.) The language suggested by the Supreme Court would have permitted dismissal if failure to assert the new grounds was “not excusable.” Congress rejected this language and substituted the “abuse of the writ” standard of Sanders v. United States, supra. Congress feared that the “ ‘not excusable’ language created a new and undefined standard that gave a judge too broad a discretion to dismiss a second or successive petition. The ‘abuse of the writ’ standard brings Rule 9(b) into conformity with existing law.” H.R.Rep. No. 94-1471, 94th Cong., 2d Sess. 5 (1976); reprinted in [1976] U.S. Code Cong. & Admin. News pp. 2478, 2482. Thus, Rule 9(b) reflects a deliberate and considered choice by" }, { "docid": "16506971", "title": "", "text": "Rule 9(a) dismissal may be effected summarily, without a hearing. McDonnell v. Estelle, 666 F.2d 246, 252 (5th Cir.1982); see Habeas Rule 11, Fed.R.Civ.P. 81(a)(2); see also Soileau v. Blackburn, 789 F.2d 1209, 1210 (5th Cir.1986). Consideration of whether dismissal under Rule 9(b) is appropriate, like that under Rule 9(a), is “necessarily fact oriented.\" Urdy v. McCotter, 773 F.2d 652, 656 (5th Cir.1985). Therefore, it seems sensible, as we did in Jones v. Estelle, 692 F.2d 380, 384-85 (5th Cir.1982), to apply the standards of Rule 56 to this Rule 9(b) issue. Accordingly, in order for a dismissal under Rule 9(b) to be appropriate without an evidentiary hearing, there must be no genuine issue of material fact, and the dismissal must be appropriate as a matter of law. Id.; see Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948). . We noted in Jones that perhaps not all the principles set forth in Sanders were codified in Rule 9(b). 722 F.2d at 167 n. 7. For example, although Sanders could arguably be read to require personal waiver of federal rights by a petitioner, Sanders was not so read by the Supreme Court at the time Rule 9(b) was codified. See id. (citing Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965)). The discrete issue before us, however, is the state of a pro se petitioner’s knowledge of claims for purposes of application of the abuse of the writ doctrine. The principles of Sanders that govern that issue do not appear to have been altered by the Supreme Court in the intervening years before Rule 9(b) was codified. . See also 28 U.S.C. § 2244(b); Wong Doo v. United States, 265 U.S. 239, 241, 44 S.Ct. 524, 525, 68 L.Ed. 999 (1924). . In Jones, we decided that a prisoner’s actual knowledge of claims that he failed to assert in one petition was irrelevant when the petitioner was represented by competent counsel in preparing that petition. 722 F.2d at 169. In such cases, a petitioner \"is chargeable with that awareness that" }, { "docid": "11692253", "title": "", "text": "1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963), the Court stated that “if a prisoner deliberately withholds one of the two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings ... he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground.” However, “Rule 9(b) must be applied narrowly as it was not intended to abrogate the historical role of the writ ‘ “as an effective and imperative remedy for detentions contrary to fundamental law.” ’ See Sanders, 373 U.S. at 17-18, 83 S.Ct. at 1078-1079; quoting Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963).” Robinson v. Fairman, 704 F.2d 368, 370 (7th Cir.1983). Sanders contemplates a case where a prisoner deliberately withholds one of two grounds of relief when both grounds exist, fully exhausted, at the time of the filing of the initial petition. In such a situation, dismissal of the subsequent petition as an abuse of the writ is proper, where it is pleaded and proved that the petitioner was able to include all of his claims in the first petition but knowingly chose not to do so in order to obtain a second hearing. The instant claim is not the type prohibited by Sanders. At the time Rivera initially sought habeas relief, this claim was unavailable to him because it had not been exhausted in the state courts. The Supreme Court’s decision in Sanders does not require a prisoner to delay filing a habeas petition until all possible claims have been exhausted. Rather, Sanders requires a habeas petitioner to present all available and exhausted claims in a single petition. Since Rivera’s ineffective assistance claim was unex- hausted and therefore unavailable at the time his first habeas petition was filed— and his detention is arguably “contrary to fundamental law,” Fay v. Noia, supra — his filing of the instant claim does not constitute an abuse of the writ. The motion to dismiss is denied. III. RESPONDENTS’ MOTION FOR" }, { "docid": "16506972", "title": "", "text": "could arguably be read to require personal waiver of federal rights by a petitioner, Sanders was not so read by the Supreme Court at the time Rule 9(b) was codified. See id. (citing Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965)). The discrete issue before us, however, is the state of a pro se petitioner’s knowledge of claims for purposes of application of the abuse of the writ doctrine. The principles of Sanders that govern that issue do not appear to have been altered by the Supreme Court in the intervening years before Rule 9(b) was codified. . See also 28 U.S.C. § 2244(b); Wong Doo v. United States, 265 U.S. 239, 241, 44 S.Ct. 524, 525, 68 L.Ed. 999 (1924). . In Jones, we decided that a prisoner’s actual knowledge of claims that he failed to assert in one petition was irrelevant when the petitioner was represented by competent counsel in preparing that petition. 722 F.2d at 169. In such cases, a petitioner \"is chargeable with that awareness that a competent lawyer would have possessed.” Id. . The state contends in passing that the lapse of time between the conviction and this appeal should bar consideration of the petition, citing to the Chief Justice’s written statement regarding a denial of certiorari in Spalding v. Aiken, 460 U.S. 1093, 103 S.Ct. 1795, 76 L.Ed.2d 361 (1983). Suffice it to say that delay is a matter to be considered under Rule 9(a), not Rule 9(b), and then only on the question of whether the state \"has been prejudiced in its ability to respond to the petition by delay in its filing.\" Vasquez v. Hillery, — U.S.-, 106 S.Ct. 617, 624, 88 L.Ed.2d 598 (1986). It is no defense to a habeas corpus petition that the state may be unable to retry the petitioner. Id. In any event, the state does not claim that it will be unable to retry Passman, and it has not asserted that it was unable to respond to the allegations of the petition. At no time has the state suggested that Rule" }, { "docid": "5239159", "title": "", "text": "is not clearly erroneous. He neither called his wife to fortify his alibi defense nor produced proof of the existence of an exculpatory statement by his co-defendant, McGowan. Saahir has not shown that failure to consider his claim will result in a fundamental miscarriage of justice and that he remains incarcerated though innocent. CONCLUSION The district court’s factual findings and legal conclusions were correct, and the court did not abuse its discretion in dismissing Saahir’s petition for abuse of the writ. Accordingly, the dismissal is AFFIRMED. . Rule 9(b) of the rules governing habeas corpus petitions provides: Successive petitions. A second or successive petition may be dismissed ... if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ. 28 U.S.C. § 2254 Rule 9(b). . The actual knowledge standard adopted in Passman and questioned in Woods flowed from a pair of Supreme Court decisions that have been modified by McCleskey. The first, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), held that a procedural default in state court does not bar federal habeas review unless the petitioner has deliberately bypassed state procedures by intentionally forgoing an opportunity for state review. Id. at 438-39, 83 S.Ct. at 846. In Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), the Court extended the “deliberate bypass” standard of Fay to the abuse of the writ doctrine. Id. at 18, 83 S.Ct. at 1078. Accordingly, Passman concluded: In light of Sanders, there is no room in habe-as corpus adjudications for an abuse of the writ doctrine to a pro se petitioner who did not subjectively know about a particular legal claim when an earlier petition was filed. A pro se petitioner must, at the least, knowingly withhold a claim in order for the abuse of the writ doctrine to apply. 797 F.2d at 1343. Most recently, however, Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), overruled Fay v. Noia" }, { "docid": "13665195", "title": "", "text": "or treaties of the United States. Traditionally, the availability of the remedy depended solely on the in-custody status of the petitioner and successive applications for the writ were allowed as long as confinement continued. See Sanders v. United States, 373 U.S. 1, 7-8, 11-12, 83 S.Ct. 1068, 1072-73, 1075, 10 L.Ed.2d 148 (1963); Fay v. Noia, 372 U.S. 391, 430, 83 S.Ct. 822, 844, 9 L.Ed.2d 837 (1963). The statute, however, permits the federal courts discretion to decline to consider a successive application for the writ if it presents claims submitted in a prior application which have been decided on the merits. 28 U.S.C. § 2244(b) and Rule 9(b) of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254. Respon dents concede that the statute, by its terms, does not authorize dismissal of petitioner’s claims. They argue, however, that the rule styled in Sanders v. United States, supra, which the statute was intended to codify, is broader than the literal language of the statute. See Potts v. Zant, 638 F.2d 727, 739 (5th Cir.), cert. denied, 454 U.S. 877, 102 S.Ct. 357, 70 L.Ed.2d 187 (1981). It is true that in Sanders, the Supreme Court left open the possibility that a successive petition containing claims advanced but not adjudicated in a previous petition might be dismissed for abuse of the writ. 373 U.S. at 17, 83 S.Ct. at 1078. The Court clearly intended, however, that this restriction on the availability of the writ because of misconduct be “[njarrowly circumscribed, in conformity to the historical role of the writ of habeas corpus as an effective and imperative remedy for detention contrary to fundamental law .... ” Sanders v. United States, 373 U.S. at 17-18, 83 S.Ct. at 1078 (quoting from Fay v. Noia, 372 U.S. at 438, 83 S.Ct. at 849). In discussing when a successive petition might be deemed an abuse of the writ, the Court in Sanders referred to Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924). In Wong Doo, the petitioner had purposely withheld a ground for relief from" }, { "docid": "22408587", "title": "", "text": "critical proposition in Judge Tjoflat’s argument for the rule of complete exhaustion is that the enforceable norm in federal habeas corpus proceedings is a single federal proceeding in which all of a petitioner’s potential claims are considered. This norm is supposedly derivable from the policies and provisions of Rule 9 of the Rules Governing Section 2254 Cases in United States District Courts, 28 U.S.C.A. foil. § 2254 (1977). The rule of complete exhaustion is asserted to be the instrument by which the norm is to be achieved. Congress has by no means accepted the majority’s critical proposition. I will quite readily concede the propriety of divining from Rule 9 the existence of a general policy favoring the resolution of all federal claims in a single federal proceeding. Insofar as the majority relies on Rule 9 for this much and no more, the court’s reasoning is unexceptionable. However, in going beyond this modest conclusion to suggest that “rule 9 forces a petitioner to assert his claims promptly and in one petition,” majority opinion at 357, (emphasis in original), and to adopt the rule of complete exhaustion in order to give “full effect to the objective of rule 9,” majority opinion at 357, the majority has turned Rule 9 on its head. For the rule of Rule 9(b) governing successive petitions is the rule of Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963): a federal court must consider on the merits a second or successive petition asserting previously unasserted grounds for relief unless the failure to assert the new grounds in the earlier petition constituted abuse of the writ. Abuse of the writ may be found only if the failure to litigate the new claim on the prior application constituted a deliberate bypass or waiver within the meaning of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Sanders v. United States, supra. Thus, while the Sanders standard strikes a balance between competing interest, the interest in considering all claims in a single proceeding and the interest in correcting constitutional error," }, { "docid": "14812945", "title": "", "text": "83 S.Ct. at 757. The Court explained that if, “for any reason not attributable to the inexcusable neglect of petitioner, see Fay v. Noia, [372 U.S. 391, 438, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837 (part V) (1963)], evidence crucial to the adequate consideration of the constitutional claim was not developed at the state hearing, a federal hearing is compelled.” Townsend v. Sain, 372 U.S. at 317, 83 S.Ct. at 759 (emphasis added). The Townsend Court thus defined the inexcusable neglect standard in terms of a Fay v. Noia deliberate bypass. The Court in Fay, in turn, keyed deliberate bypass to the standard for waiver of constitutional rights articulated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938): “an intentional relinquishment or abandonment of a known right or privilege.” See also Guice v. Fortenberry, 661 F.2d 496, 506-07 (5th Cir.1981) (en banc) (summarizing the relationship between Townsend, Fay, and Zerbst ). The deliberate bypass test posed the danger that counsel might strategically withhold evidence or sandbag. This possibility was noted by judges who commented on Townsend. Subsequent decisions, how ever, have brought the deliberate bypass test within manageable limits. In Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 569, 13 L.Ed.2d 408 (1965), for example, the Court put to rest the suggestion in Fay and Zerbst that only the defendant himself could make an effective waiver of constitutional rights. The Court held that counsel’s decisions on trial strategy might “amount to a waiver binding on petitioner [which] would preclude him from a decision on the merits of his federal claim .... ” See also Coco v. United States, 569 F.2d 367, 371 (5th Cir.1978); Aaron v. Capps, 507 F.2d 685, 690-92 (5th Cir.1975) (appendix); Winters v. Cook, 489 F.2d 174, 180 (5th Cir.1973) (en banc). Concerns about sandbagging by counsel also proved important to the Supreme Court in its disposition of the state procedural default cases. In Davis v. United States, 411 U.S. 233, 241, 93 S.Ct. 1577, 1582, 36 L.Ed.2d 216 (1973) and Wainwright v. Sykes, 433 U.S. 72, 97" }, { "docid": "16506942", "title": "", "text": "1068, 1078, 10 L.Ed.2d 148 (1963). See also 28 United States Code, section 2244(b). H.R.Rep. No. 1471, 94th Cong. 2d Sess. 5-6, reprinted in 1976 U.S. Code Cong. & Ad. News 2478, 2482. See Clinton, Rule 9 of the Federal Habeas Corpus Rules, 63 Iowa L.Rev. 15, 30-31, 38 (1977). Thus, we must examine Sanders to determine what constitutes an abuse of the writ. See Rose v. Lundy, 455 U.S. 509, 521, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982) (plurality opinion of O’Connor, J.) (Rule 9(b) “incorporates the judge-made principle governing the abuse of the writ set forth in Sanders’’); id. 455 U.S. at 534-35, 102 S.Ct. at 1211-12 (Brennan, J., concurring in part and dissenting in part) (interpretation of Rule 9(b) “necessarily entails an accurate interpretation of the Sanders standard”). See also Jones v. Estelle, 722 F.2d 159, 163 (5th Cir.1983) (en banc) (“Rule 9(b) largely codified the principles enunciated in Sanders”), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984); L. Yackle, Postconviction Remedies § 154, at 563 (1981). The Court in Sanders discussed the abuse of the writ doctrine as follows: if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground____ Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay. 373 U.S. at 18, 83 S.Ct. at 1078 (quoted in Jones, 722 F.2d at 163). As we stated in Jones, “Sanders relied on Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), to indicate the limits of the writ abuse doctrine.” 722 F.2d at 163. Noia held that “a petitioner loses the right to have a" }, { "docid": "11824553", "title": "", "text": "the court determine his capacity to stand trial.” Pate v. Robinson, 1966, 383 U.S. 375, 384, 86 S.Ct. 836, 841, 15 L.Ed.2d 815, 821. Of course, the doctrine of waiver may have some vitality in the abuse-of-remedy exception to the hearing requirement of § 2255. As explained in Sanders v. United States, supra, 373 U.S. at 17-19, 83 S.Ct. at 1078-1079, 10 L.Ed.2d at 162-163, this exception dispenses with the necessity for a hearing on a prisoner’s § 2255 motion where the ground alleged in that motion was deliberately withheld from assertion by the prisoner in a prior § 2255 motion. And, it would seem, the same equitable principles underlying this exception would apply where the ground asserted in an original § 2255 motion was deliberately withheld from assertion at trial. However, the Court in Sanders made clear that the test used to determine abuse-of-remedy in the § 2255 area is the same as the test laid down in Fay v. Noia, 1963, 373 U.S. 391, 438-439, 83 S.Ct. 822, 848-849, 9 L.Ed.2d 837, 868-969, for determining whether there had been a deliberate-by-pass of state courts in the federal habeas area. And in Fay, adopting the “classic definition of waiver enunciated in Johnson v. Zerbst [304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461] * * * — ‘an intentional relinquishment or abandonment of a known right or privilege’ ”, the Court made clear that “waiver” depends on “the considered choice of the petitioner” and that “a choice made by counsel not participated in by the petitioner does not automatically bar relief.” Ibid. And even here, before denying relief without a hearing on the merits, the District Court must have “satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant’s default.” Ibid. . Only if the § 4244 report concludes that the defendant is incompetent is there a necessity to hold an evidentiary hearing and make a judicial determination supported by specific findings. See note 8, supra, and accompanying text. If the report concludes that the defendant is competent, then the statute" }, { "docid": "22950079", "title": "", "text": "the writ. 28 U.S.C. foil. § 2254, Rule 9(b). As the advisory committee notes to Rule 9(b) affirm, “[t]his subdivision is aimed at screening out the abusive petitions from this large volume, so that the more meritorious petitions can get quicker and fuller consideration.” Adopted in 1976, Rule 9(b) largely codifies the principles enunciated in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). Specifically, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of- being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground.... Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay. Id. at 18, 83 S.Ct. at 1078. Sanders relied on Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), to indicate the limits of the writ abuse doctrine. Fay had established that, because habeas corpus is governed by equitable principles, “a suitor’s conduct in relation to the matter at hand may disentitle him to the relief he seeks.” 372 U.S. at 438, 83 S.Ct. at 849. Though Fay involved exhaustion of state remedies, its analysis is equally applicable to successive writs. According to Fay, a petitioner loses the right to have a claim considered on a successive petition if he “understanding^ and knowingly forewent the privilege,” 372 U.S. at 439, 83 S.Ct. at 849, of raising that claim in his initial petition. The bar “depends on the considered choice of the petitioner.” Id. But note that the inquiry is not whether the petitioner intended to give up his right to have a claim heard at all. It is whether he withheld it without legal excuse when he filed his earlier petition. The outer limits" }, { "docid": "22950103", "title": "", "text": "the law or decide whether the Engle duty extends to a habeas petitioner attempting to explain omitted claims. See also note 3, supra. . In Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924), for example, petitioner asserted two claims but pursued only one. Writ abuse was held to bar the other claim when it was asserted in a successive petition. . We recognize that a cramped reading of Rule 9(b)’s antecedents in Supreme Court caselaw could support a claim that 9(b) applies only to knowing waivers by the petitioner himself. Rule 9(b), as we have stated, codifies the principles of Sanders, which in turn grounds its explication of waiver and abuse in Fay v. Noia. Fay defined waiver in terms of an understanding and knowing decision by an individual to forego a claim, and because it made no mention of the representative role of counsel, it could be read to exclude such an agency relationship, thereby expanding the Johnson v. Zerbst doctrine. By the time Rule 9(b) was enacted, however, Fay’s reach had been substantially limited by Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965) —a precursor of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)— which' recognized the agency authority of an attorney to waive certain substantive rights of a criminal defendant at trial. Thus, when Congress was considering Rule 9(b), Sanders and Fay were not then being read by the Supreme Court in a manner which would always require personal waiver by a petitioner. But even if Congress read Sanders and Fay to limit the representative role of counsel, it does not follow that this limitation was engrafted into Rule 9(b). Sanders was the milestone case in which the Supreme Court explicitly enunciated a writ abuse doctrine. In this sense, Rule 9(b), the writ abuse statute, plainly codifies Sanders. However, we have never held that every hint or implication which may reasonably be perceived in Sanders is likewise embodied in Rule 9(b). Here, where one such possible ramification of Sanders would" }, { "docid": "23384533", "title": "", "text": "only if there has been an abuse of the writ . . . .” As enacted by Congress, Rule 9(b) codifies the standard of Sanders. Advisory Committee Note, Rule 9, Rules Governing Section 2254 Cases in the United States District Courts (28 U.S.C. following § 2254); H.R.Rep.No.1471, 94th Cong., 2d Sess. 5-6, reprinted in [1976] U.S. Code Cong. & Admin.News, pp. 2478, 2482; Galtieri v. Wainwright, 582 F.2d 348, 356 & n.18 (5th Cir. 1978) (en banc); 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 4267 at 690-91 (1978). When we examine the conduct of petitioner in light of the equities, see Sanders, supra, 373 U.S. at 17, 83 S.Ct. at 1078, we clearly cannot conclude that this petition constitutes “needless piecemeal litigation” or that its “purpose is to vex, harass, or delay.” Id. at 18, 83 S.Ct. at 1078. There was here no abuse of the writ hf habeas corpus. The Sanders Court spoke of a circumstance in which abuse of the writ is present. “[I]f a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application . he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground.” 373 U.S. at 18, 83 S.Ct. at 1078 (emphasis added). However, from Sanders’ incorporation of the standards of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, see 373 U.S. at 18, 83 S.Ct. at 1078 (1963), it is clear that such conduct will be an abuse of the writ only if due to “inexcusable neglect,” Townsend, supra, 372 U.S. at 317, 83 S.Ct. at 759, or because of “ ‘an intentional relinquishment or abandonment of a known right or privilege,’ ” Fay, supra, 372 U.S. at 439, 83 S.Ct. at 849, quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). See 28 U.S.C. § 2244(b); Turnbow v. Beto, 464 F.2d 527, 528" }, { "docid": "8516093", "title": "", "text": "the committing court.” Id. at 404, 83 S.Ct. at 830. . “ * * * the Court ruled that, since waiver of a federal claim is a federal question, a state court’s finding of waiver will not automatically bar independent federal examination. Then the Court enunciated a federal waiver standard adopted principally from the Johnson v. Zerbst [304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461] ‘knowing and intelligent’ formulation and presenting a clear contrast with the traditional state formulations. Conventional notions of waiver and finality of judgment, felt the Court, obstruct adequate vindication of federal rights * * *. The Court implied that a decision made by petitioner’s counsel, without consulting his client, will not be considered ‘an intentional relinquishment * * * of a known right or privilege’ rather a waiver ‘depends on a considered choice of the defendant.’ ” Note, State Post-Conviction Remedies & Federal Habeas Corpus, 40 N.Y.U.L.Rev. 154, 156-57 (1965). The decision in Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965) casts doubt upon the necessity of the defendant to participate fully in every tactical decision of trial counsel. Thereby, perhaps, diluting the stringent waiver standards suggested in Noia. . «* * * th.e doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute.” Fay v. Noia, 372 U.S. 391, 399, 83 S.Ct. 822, 827, 9 L.Ed.2d 837. . “Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at tho time of tho trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.” Townsend v. Sain, 372 U.S. 293, 312-313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). . Id. at" }, { "docid": "22610087", "title": "", "text": "496. The Court in Sykes expressly declined to define this concept, see 433 U. S., at 91, and since then, the Court has elaborated upon “prejudice” only as it applies to nonconstitutional jury-instruction challenges, leaving “the import of the term in other situations ... an open question.” United States v. Frady, 456 U. S. 152, 168 (1982). Thus, far from resolving “confusion” over the proper application of the abuse-of-the-writ doctrine, today’s decision creates it. In this respect, the abuse-of-the-writ doctrine rests on a different foundation from the procedural-default doctrine. In Wainwright v. Sykes, 433 U. S. 72 (1977), the Court emphasized that the procedural-default rule set down in Fay v. Noia, 372 U. S. 391 (1963), derived only from “comity” considerations, 433 U. S., at 83, and explained that the content of this doctrine is therefore subject to the Court’s traditional, common-law discretion “to overturn or modify its earlier views of the scope of the writ, even where the statutory language authorizing judicial action has remained unchanged,” id., at 81. But unlike Fay v. Noia’s “deliberate bypass” test for procedural defaults, the “deliberate abandonment” test of Sanders has been expressly ratified by Congress. This legislative action necessarily constrains the scope of this Court’s common-lawmaking discretion. Indeed, Congress expressly amended Rule 9(b) to eliminate language that would have established a standard similar to “inexcusable neglect.” As initially submitted to Congress, Rule 9(b) would have authorized a district court to entertain a second or successive petition raising a previously unasserted ground unless the court “finds that the failure of the petitioner to assert th[at] groun[d] in a prior petition is not excusable.” H. R. Rep. No. 94-1471, p. 8 (1976) (emphasis added). Explaining that “the ‘not excusable’ language [would] ereat[e] a new and undefined standard that [would] g[ive] a judge too broad a discretion to dismiss a second or successive petition,” Congress substituted Sanders’ “abuse of the writ” formulation. See id., at 5. This amendment was designed to “brin[g] Rule 9(b) into conformity with existing law.” Ibid. House bill 5269 was the House version of the legislation that became the Crime Control" }, { "docid": "22950102", "title": "", "text": "these claims in the original petition was “not excusable.” By amendment, this “not excusable” language was superseded by the current “abuse of the writ” language because Congress feared that the “not excusable” standard was “new and undefined,” and “gave a judge too broad a discretion to dismiss a second or successive petition.” House Report No. 94-1471, reprinted in 1976 U.S.Code Cong. & Ad.News 2478, 2480. This change in terminology did not effect a significant change in the governing standard we use, for our cases define abuse of the writ in terms of whether a petitioner’s unawareness of facts or failure to understand the legal significance of known facts is “excusable” or “justifiable.” See, e.g., Sockwell v. Maggio, 709 F.2d at 344. . But the Supreme Court in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) charges a prisoner with a duty to anticipate changes at the pain of forfeiture under a state contemporaneous objection rule. We do not here define the scope of a petitioner’s need to anticipate changes in the law or decide whether the Engle duty extends to a habeas petitioner attempting to explain omitted claims. See also note 3, supra. . In Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924), for example, petitioner asserted two claims but pursued only one. Writ abuse was held to bar the other claim when it was asserted in a successive petition. . We recognize that a cramped reading of Rule 9(b)’s antecedents in Supreme Court caselaw could support a claim that 9(b) applies only to knowing waivers by the petitioner himself. Rule 9(b), as we have stated, codifies the principles of Sanders, which in turn grounds its explication of waiver and abuse in Fay v. Noia. Fay defined waiver in terms of an understanding and knowing decision by an individual to forego a claim, and because it made no mention of the representative role of counsel, it could be read to exclude such an agency relationship, thereby expanding the Johnson v. Zerbst doctrine. By the time Rule 9(b) was" } ]

[ { "docid": "19340194", "title": "", "text": "the evidence could find the defendant’s explanation to be a pretext for discrimination, the court held that “a trial on these issues is not warranted” and, hence, granted defendant’s motion for summary judgment. This appeal followed. II. A. Standard of Review Our review of a district court’s grant of summary judgment is de novo. Johnson, 714 F.3d at 52. In conducting our “fresh look” at the record, we view the evidence in the light most favorable to the non-moving party, Ahmed, and draw all reasonable inferences in his favor. Gerald v. Univ. of P.R., 707 F.3d 7, 16 (1st Cir.2013). Summary judgment is appropriate only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Gerald, 707 F.3d at 16. To determine whether a trial-worthy issue exists, we look to all of the record materials on file, including the pleadings, depositions, and affidavits. Fed.R.Civ.P. 56(c)(1)(A); Johnson, 714 F.3d at 52. We may neither evaluate the credibility of witnesses nor weigh the evidence. See Sheehan v. N. Am. Mktg. Corp., 610 F.3d 144, 149 (1st Cir.2010). Summary judgment is inappropriate if the evidence “is sufficiently openended to permit a rational fact finder to resolve the issue in favor of either side.” Gerald, 707 F.3d at 16 (internal quotation marks omitted). B. Legal Principles Where, as here, a claim of discrimination under Title VII rests on circumstantial evidence, we apply the McDonnell Douglas burden-shifting analysis to help the parties “sharpen the inquiry into the elusive factual question” of the employer’s motivation. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 n. 8, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); see also Johnson, 714 F.3d at 53-54. Under that framework, the plaintiff must first estab lish a prima facie case of discrimination. Johnson, 714 F.3d at 53. If he succeeds, an inference of discrimination arises, and the burden of production shifts to the defendant to produce evidence that the challenged employment action was taken for a legitimate, non-discriminatory reason. Id. at 53-54. If the employer" } ]

[ { "docid": "10744760", "title": "", "text": "future.” For purposes of Count III — Fraud, Deceit, and Misrepresentation, the Debtor relies upon the Forensic Audit Report for the proposition that any proposed payment after the first recast date would be impossible to accurately predict because the mortgage has an adjustable rate feature. III. SUMMARY JUDGMENT STANDARD A movant is entitled to summary judgment when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), made applicable to this proceeding by Fed. R. Bankr P. 7056. “A dispute is ‘genuine’ if the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party. A fact is ‘material’ if it has the potential of determining the outcome of the litigation.” Baker v. St. Paul Travelers Ins. Co., 670 F.3d 119, 125 (1st Cir.2012) (quoting Scottsdale Ins. Co. v. Torres, 561 F.3d 74, 77 (1st Cir.2009)). “The non-movant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists.” Rockwood v. SKF USA Inc., 687 F.3d 1, 9 (1st Cir.2012) (quoting Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006)). They “must be able to point to specific, competent evidence to support [their] claim.” Id. (quoting Soto-Ocasio v. Fed. Express Corp., 150 F.3d 14, 18 (1st Cir.1998)). In evaluating the evidence, the court “must construe the record in the light most favorable to the nonmovant and resolv[e] all reasonable inferences in that party’s favor while safely ignoring conclusory allegations, improbable inferences, and unsupported speculation.” Collins v. Univ. of N.H., 664 F.3d 8, 14 (1st Cir.2011) (alteration in original) (internal quotation marks omitted). IV. THE MOTION TO STRIKE The Defendants moved to strike the Forensic Audit Report prepared by Dilbert. They contend correctly that “Mr. Dilbert ... failed to demonstrate that he is qualified to testify as an expert.” The Defendants add that in his Report Dilbert admitted that he had not reviewed many, if not most of, the relevant documents in this case. Accordingly," }, { "docid": "6779655", "title": "", "text": "any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). It is inappropriate “if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side.” Pierce v. Cotuit Fire District, 741 F.3d 295, 301 (1st Cir.2014). “Genuine issues of fact are those that a factfinder could resolve in favor of the nonmovant, while material facts are those whose ‘existence or nonexistence has the potential to change the outcome of the suit.’” Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir.2014) (quoting Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir.2011)). The evidence is viewed “in the light most favorable to the non-moving party,” plaintiff, and “all reasonable inferences” are drawn in his favor. Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir.2014). In reviewing a summary judgment motion, a court may examine “all of the record materials on file,” Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir.2014), “including depositions, documents, electronically stored information, affidavits or declarations ... or other material.” Fed.R.Civ.P. 56(c)(1); see Ahmed v. Johnson, 752 F.3d at 495. Plaintiffs failure to controvert statements of undisputed facts in Riendeau and Nickl’s LR. 56.1 statement may result in the facts being admitted for purposes of the summary judgment motion. LR. 56.1; Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1st Cir.2003) (plaintiff’s failure to contest date in LR. 56.1 statement of material facts caused date to be admitted on summary judgment); Stonkus v. City of Brockton School Department, 322 F.3d 97, 102 (1st Cir.2003); see Sutliffe v. Epping School Dist., 584 F.3d 314, 321 (1st Cir.2009) (plaintiffs’ “pro se status did not relieve them of their responsibility to comply with procedural rules”). Plaintiff signed the complaint as “Sworn under pain and penalty of perjury.” (Docket Entry # 1). Accordingly, facts based on personal knowledge in the complaint are part of the summary judgment record. See Sheinkopf v. Stone, 927 F.2d 1259, 1262-1263 (1st Cir.1991); see also Goldman," }, { "docid": "16027921", "title": "", "text": "found that Amphenol had articulated a legitimate, nondiscriminatory reason for its decision to terminate Ameen. The court next determined that, because Harrington did not know about Ameen’s FMLA-protected activity, Ameen would need to invoke the cat’s paw theory to impute Conners’s or Pratt’s animus to her as the decision-maker. The. “cat’s paw theory” is employed when one “seeks to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision.” Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 1190, 179 L.Ed.2d 144 (2011). However, the court concluded that Ameen “ha[d] produced no facts from which a reasonable jury could conclude that either Conners or Pratt acted in a way that would justify invocation of the cat’s paw theory,” and thus Ameen could not establish that Amphenol’s reason was a pretext for retaliation under the FMLA. The district court entered judgment in favor of Amphenol, and this timely appeal followed. II. Standard of Review We review the district court’s grant of summary judgment to Amphenol de novo, “assessing the record in the light most favorable to the nonmovant and resolving all reasonable inferences in that party’s favor.” Barclays Bank PLC v. Poynter, 710 F.3d 16, 19 (1st Cir.2013) (internal quotations omitted). Summary judgment is properly granted “where ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Id. (quoting Fed.R.Civ.P. 56(a)). “A dispute is ‘genuine’ if a reasonable jury, drawing favorable inferences, could resolve it in favor of the nonmoving party.” Velázquez-Pérez v. Developers Diversified Realty Corp., 753 F.3d 265, 270 (1st Cir.2014) (internal quotations omitted). “Even in employment discrimination cases where elusive concepts such as motive or intent are at issue, summary judgment is appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.” Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003) (internal quotations omitted). III. Discussion Ameen makes several arguments on appeal, the major thrust of which is that genuine issues of disputed facts exist, and summary" }, { "docid": "6627670", "title": "", "text": "is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Wolf v. Gruntal & Co., 45 F.3d 524, 527 (1st Cir.1995); National Amusements, Inc., v. Dedham, 43 F.3d 731, 735 (1st Cir.1995). The First Circuit delineated the manner in which Federal Rule of Civil Procedure 56, functions: Once a properly documented motion has engaged the gears of Rule 56, the party to whom the motion is directed can shut down the machinery only by showing that a trialworthy issue exists. As to issues on which the summary judgment target bears the ultimate burden of proof, she cannot rely on an absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic disputed Not every factual dispute is sufficient to thwart summary judgment; the contested fact must be “material” and the dispute over it must be “genuine.” In this regard, “material” means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. By like token, “genuine” means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmov-ing party. McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995) (citations and some internal punctuation marks omitted). The Court “must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). While carrying out that task, the Court safely can ignore “conclusory allegations, improbable inferences, and unsupported speculation.” Suárez v. Pueblo Intern., Inc., 229 F.3d 49, 53 (1st Cir.2000) (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)). Once a movant has made a preliminary showing that there exists no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law, the nonmovant bears the burden to show the existence of a genuine material issue. J. Geils Band Employee Benefit Plan" }, { "docid": "23545859", "title": "", "text": "alter or amend the judgment. Prescott now appeals. II. Summary Judgment and Cross-Motion for Summary Judgment A. Standard of Review We review a motion for summary judgment de novo, construing the record in the light most favorable to the non-movant and resolving all reasonable inferences in that party’s favor. See Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir.2008). We may ignore “conclusory allegations, improbable inferences, and unsupported speculation.” Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990) (citing Rossy v. Roche Products, Inc., 880 F.2d 621, 624 (1st Cir.1989)). We will reverse only if, “after reviewing the facts and making all inferences in favor of the non-moving party [here, Prescott], the evidence on record is ‘sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side.’ ” Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir.2008) (quoting Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995)). “Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law based on the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits.” Thompson, 522 F.3d at 175 (citing Fed. R. Civ P. 56(c)). “A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party.” Id. (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996)) (internal quotation marks omitted). “A fact is material if it has the potential of determining the outcome of the litigation.” Maymí, 515 F.3d at 25. To defeat a motion for summary judgment, evidence offered by the non-movant “must be significantly probative of specific facts.” Pérez v. Volvo Car Corp., 247 F.3d 303, 317 (1st Cir.2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). B. Discussion Prescott appeals the district court’s grant of summary judgment on discrimination claims for disparate treatment, disparate impact, compensation, hostile work environment, tortious interference" }, { "docid": "20452292", "title": "", "text": "claims under Article 1802 of the Puerto Rico Civil Code, Law No. 115 of December 20, 1991, and Law No. 44 of July 2,1985. On August 31, 2009, the Municipality moved for summary judgment. Colón filed her opposition on September 21, 2009, and the Municipality replied on October 16, 2009. On December 2, 2009, the district court granted the Municipality’s summary judgment motion. Finding no genuine issue of material fact as to Colon’s various allegations, the court dismissed Colon’s claims of disability discrimination and retaliation with prejudice, and it dismissed Colon’s Commonwealth law claims without prejudice. Colón appealed, raising several evidentiary matters and asserting that the district court erred in dismissing her ADA claim, her retaliation claim, her hostile work environment claim, and her equal protection claim. II. Discussion A. Standard of Review We start our appellate engines considering the applicable standard of review. Summary judgment is properly granted where 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). The movant must support her motion by citing specifically to materials in the record or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “The scope of appellate review of entry of summary judgment in ADA cases, as in all others, is de novo.” Mulloy v. Acushnet Co., 460 F.3d 141, 145 (1st Cir.2006) (quoting EEOC v. Amego, Inc., 110 F.3d 135, 141 (1st Cir.1997)) (internal quotation marks omitted). We must construe “the record in the light most favorable to the nonmovant and resolv[e] all reasonable inferences in that party’s favor” while safely ignoring “conclusory allegations, improbable inferences, and unsupported speculation.” Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir.2002) (citation and internal quotation marks omitted). In doing so, “we are not married to the trial court’s reasoning but, rather, may affirm on any independently sufficient ground made manifest by the record.” Cahoon v. Shelton, 647 F.3d 18," }, { "docid": "17081558", "title": "", "text": "for reconsideration, but to no avail. This timely appeal followed. II. ANALYSIS We subdivide our analysis into two segments, corresponding to the plaintiffs paired arguments. A. Summary Judgment. We review an order for summary judgment de novo, evaluating the facts and all reasonable inferences therefrom in the light most flattering to the nonmoving party. Houlton Citizens’ Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.1999). We will affirm the entry of summary judgment only if the record discloses no genuine issue of material fact and demonstrates that the moving party is entitled to judgment as a matter- of law. See Fed.R.Civ.P. 56(a). “This standard is favorable to the non-moving party, but it does not give him a free pass to trial.” Hannon v. Beard, 645 F.3d 45, 48 (1st Cir.2011). To be genuine, a factual dispute must be built on a solid foundation — -a foundation constructed from materials of evidentiary quality. See Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir.2011); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). “[Cjonclu-sory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative” will not 'suffice to ward off a properly supported summary judgment motion. Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir.2001). Against this backdrop, we turn to the record before us. As a sovereign nation, the United States is generally immune from tort liability except to the extent that it consents to be sued. See Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 39 (1st Cir.2000). The FTCA comprises a limited waiver of federal sovereign immunity, which allows the government to be held liable for certain tortious acts and omissions. See Limone v. United States, 579 F.3d 79, 88 (1st Cir.2009). It specifies that liability determinations are to be informed by “the law of the place where the act or omission occurred.” See 28 U.S.C. § 1346(b)(1). Here, then, we look to Puerto Rico tort law. Article 1802 of the Civil Code imposés liability on “[a]" }, { "docid": "20452293", "title": "", "text": "law.” Fed.R.Civ.P. 56(a). The movant must support her motion by citing specifically to materials in the record or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “The scope of appellate review of entry of summary judgment in ADA cases, as in all others, is de novo.” Mulloy v. Acushnet Co., 460 F.3d 141, 145 (1st Cir.2006) (quoting EEOC v. Amego, Inc., 110 F.3d 135, 141 (1st Cir.1997)) (internal quotation marks omitted). We must construe “the record in the light most favorable to the nonmovant and resolv[e] all reasonable inferences in that party’s favor” while safely ignoring “conclusory allegations, improbable inferences, and unsupported speculation.” Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir.2002) (citation and internal quotation marks omitted). In doing so, “we are not married to the trial court’s reasoning but, rather, may affirm on any independently sufficient ground made manifest by the record.” Cahoon v. Shelton, 647 F.3d 18, 22 (1st Cir.2011). B. Evidentiary Issues At the outset, we address several of Colon’s evidentiary arguments which she contends justify a finding of reversible error. Because these evidentiary arguments affect the record we review in determining whether the district court appropriately granted summary judgment, we turn to these arguments first. 1. Translation of Exhibits Colón submits that the district court disregarded “crucial and significant evidence” filed in support of Colon’s opposition to summary judgment motion on the grounds that such exhibits either had not been directly translated, into English, or corresponding translations were not provided with the exhibits. Colón asserts that the district court’s refusal to consider such evidence constitutes reversible error because the exhibits either were filed in English or submitted with their corresponding translations, thereby requiring the court’s consideration. Colón lists the following exhibits as those disregarded by the district court: 1, 17, 18, 20, 21, 23, 31, 35, 37, 38, 41, and 42. We begin with Local Rule 5(g) of the United States District Court for the District of Puerto Rico, which" }, { "docid": "22286005", "title": "", "text": "law or newly discovered evidence.” Kansky, 492 F.3d at 60. Likewise, a motion for reconsideration should be granted if the court “has patently misunderstood a party ... or has made an error not of reasoning but apprehension.” Sandoval Diaz v. Sandoval Orozco, No. 01-1022, 2005 WL 1501672, at *2 (D.P.R. June 24, 2005) (quoting Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990)). We review the district court’s entry of summary judgment de novo. Desrosiers v. Hartford Life & Accident Co., 515 F.3d 87, 92 (1st Cir.2008). Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). As was the case in the District Court, we must take the facts of record in the light most flattering to the nonmovant (here, Ruiz Rivera) and draw all reasonable inferences in her favor. See Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006); Dávila v. Corporación De Puerto Rico Para La Difusión Pública, 498 F.3d 9, 12 (1st Cir.2007). “Once the moving party avers the absence of genuine issues of material fact, the nonmovant must show that a factual dispute does exist.” Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6, 10 (1st Cir.2007). Summary judgment cannot be defeated, however, “by relying on improbable inferences, conclusory allegations, or rank speculation.” Id. III. The Regarded As Claim The ADA provides “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Katz v. City Metal Co., 87 F.3d 26, 30 (1st Cir.1996) (quoting 42 U.S.C. § 12101(b)(1)). To establish a prima facie case of disability discrimination under the ADA, a plaintiff must prove: (1) that she was “disabled” within the meaning of the ADA; (2) that she was able to perform the essential functions of her job with or without accommodation; and (3) that she was discharged or adversely affected, in whole or in part, because of her disability. Id.; see also Orta-Castro v. Merck, Sharp & Dohme Química P.R., Inc., 447 F.3d 105, 111" }, { "docid": "20763276", "title": "", "text": "the articulated reason was a sham to cover up a discriminatory purpose. II. A. Standard of Review Our review of a district court’s grant of summary judgment is de novo. Galera v. Johanns, 612 F.3d 8, 12 (1st Cir.2010). We view the record in the light most favorable to the nonmoving party, id. at 10 n. 2, and make all reasonable inferences in that party’s favor, Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir.2008). Summary judgment is appropriate when there is no genuine dispute as to any material fact and the-moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a); Cox v. Hainey, 391 F.3d 25, 29 (1st Cir.2004). We look to the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits in making the determination. Thompson, 522 F.3d at 175. A dispute is genuine if “the evidence about the fact is such that a reasonable jury- could resolve the point in favor of the non-moving party.” Id. (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996)) (internal quotation mark omitted). A fact is material if it has potential to determine the outcome of the litigation. Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir.2008). Once a properly supported motion has been presented, where a nonmovant bears the burden of proof on an issue, the non-movant must point to competent evidence and specific facts to defeat summary judgment. Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir.2011). The evidence proffered must be “significantly probative of specific facts,” Perez v. Volvo Car Corp., 247 F.3d 303, 317 (1st Cir.2001), and the “mere existence of a scintilla of evidence” in support of the nonmovant’s position is insufficient, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). B. Timeliness of Plaintiff’s EEOC Charge as to 2001 and 2008 Events The district court held that all claims about events which occurred more than 300 days prior to Johnson filing the administrative charge with the EEOC on June 4," }, { "docid": "6779654", "title": "", "text": "for sanctions (Docket Entry # 89) and this court’s denial without prejudice of a motion for appointment of counsel (Docket Entry # 62). Neither order provides a basis for reconsideration under Rule 60(b). See Daniels v. Agin, 736 F.3d at 86 (Rule-60(b) motions “ ‘should be granted sparingly’ ”); Fisher v. Kadant, Inc., 589 F.3d at 512 (setting out minimum requirements to obtain relief under Rule 60(b)). II. Riendeau and Nickl’s Summary Judgment Motion Riendeau and Nickl seek summary judgment on the retaliation and Eighth Amendment medical claims on the merits and due to a failure to exhaust administrative remedies under the PLRA. (Docket Entry # 99). They also move for summary judgment on the state law claims based on a lack of exhaustion under chapter 127 and their immunity under chapter 258, section two. (Docket Entry # 99). Plaintiff did not file an opposition to the motion. STANDARD OF REVIEW As explained in the prior Report and Recommendation, 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). It is inappropriate “if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side.” Pierce v. Cotuit Fire District, 741 F.3d 295, 301 (1st Cir.2014). “Genuine issues of fact are those that a factfinder could resolve in favor of the nonmovant, while material facts are those whose ‘existence or nonexistence has the potential to change the outcome of the suit.’” Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir.2014) (quoting Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir.2011)). The evidence is viewed “in the light most favorable to the non-moving party,” plaintiff, and “all reasonable inferences” are drawn in his favor. Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir.2014). In reviewing a summary judgment motion, a court may examine “all of the record materials on file,” Geshke v. Crocs, Inc., 740 F.3d" }, { "docid": "17081557", "title": "", "text": "fall. After filing an administrative claim, see 28 U.S.C. § 2675(a), the plaintiff sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. He averred that the VA had negligently maintained the restroom and that the loose toilet seat provoked his fall. On August 17, 2011, the United States moved for summary judgment. The plaintiff opposed the motion. Discovery closed on December 9, 2011. At that time, the government’s fully briefed motion for summary judgment was pending unresolved. Two days later, the plaintiff moved to reopen discovery. In support, his counsel described domestic difficulties that had hampered his access to case files kept in his home office (including the file in this case). The district court granted the request and extended the close of discovery to January 30, 2012. On January 5, 2012, the district court granted summary judgment. The court determined that “there is simply no evidence in the record to support that [the VA] had knowledge of the dangerous condition, the loose toilet seat.” The plaintiff moved for reconsideration, but to no avail. This timely appeal followed. II. ANALYSIS We subdivide our analysis into two segments, corresponding to the plaintiffs paired arguments. A. Summary Judgment. We review an order for summary judgment de novo, evaluating the facts and all reasonable inferences therefrom in the light most flattering to the nonmoving party. Houlton Citizens’ Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.1999). We will affirm the entry of summary judgment only if the record discloses no genuine issue of material fact and demonstrates that the moving party is entitled to judgment as a matter- of law. See Fed.R.Civ.P. 56(a). “This standard is favorable to the non-moving party, but it does not give him a free pass to trial.” Hannon v. Beard, 645 F.3d 45, 48 (1st Cir.2011). To be genuine, a factual dispute must be built on a solid foundation — -a foundation constructed from materials of evidentiary quality. See Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir.2011); Garside v. Osco" }, { "docid": "7473446", "title": "", "text": "see if he could discover a cause of action”) Id. at 39 (internal citations omitted). Finally, plaintiff has not shown cause for his failure to advance his quest for discovery. Undoubtedly, plaintiff had ample opportunity for adequate discovery but failed to engage in same. We are not inclined to reward such lack of diligence. C.B. Trucking, Inc. v. Waste Management, Inc., 137 F.3d 41, 44-45 (1st Cir.1998). Therefore, we deny plaintiffs request to conduct further discovery. III. SUMMARY JUDGMENT STANDARD Pursuant to Fed.R.Civ.P. 56, summary judgment must be granted where the record shows no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. As repeatedly stated, the function of summary judgment is “to pierce the boilerplate of the pleadings and examine the parties’ proof to determine whether a trial is actually necessary.” Vega-Rodríguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir.1997) (citing Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.1992)). It allows courts and litigants to avoid full-blown trials in unwinnable cases, thus conserving the parties’ time and money and permitting courts to husband scarce judicial resources. McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995). Summary judgment may be appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact...” Fed.R.Civ.P. 56(c). “To defeat a motion for summary judgment, the non-moving party must demonstrate the existence of a trial-worthy issue as to some material fact.” Cortes Irizarry v. Corporacion Insular, 111 F.3d 184, 187 (1st Cir.1997). “In applying this formulation, a fact is ‘material’ if it potentially affects the outcome of the case,” Vega-Rodriguez, 110 F.3d at 178, and “ ‘genuine’ if a reasonable factfinder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party’s favor.” Cortes-Irizarry, 111 F.3d at 187. “Speculation and surmise, even when coupled with effervescent optimism that something definite will materialize further down the line," }, { "docid": "3549813", "title": "", "text": "at 85-87. Finally, the court refused to exercise supplemental jurisdiction over the pendent claim and dismissed that claim without prejudice to its pursuit in the courts of Puerto Rico. See id. at 88-89. This appeal followed. IV. THE SUMMARY JUDGMENT STANDARD While the origins of the summary judgment standard may have been important in the distant past, modern federal practice has reached a point at which the standard has achieved aphoristic acceptance, rendering the attribution of specific authorship superfluous. We thus present the standard without particularized citation, referring readers interested in further exposition to the long litany of decisions that have placed a gloss on the language of Fed.R.Civ.P. 56(c). See McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995) (collecting cases); Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir.1995) (same). Summary judgment is a means of determining whether a trial is actually required. It is appropriately granted when the record shows that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Thus, in order to defeat a properly crafted summary judgment motion, the party opposing it must demonstrate that a trialworthy issue looms as to a fact which could potentially affect the outcome of the suit. A trial or appellate court considering the merits of a summary judgment initiative must peruse the record in the light most favorable to the nonmovant. While this equation must take into account all properly documented facts, the court may ignore unsupported conclusions, rank speculation, and opprobrious epithets. If the evidence, so viewed, reveals a genuine dispute over a material fact — that is, if a reasonable factfinder, examining the evidence and drawing all reasonable inferences in the required manner, could resolve a factual controversy which is critical to the outcome of the case in favor of the nonmoving party — then summary judgment will not lie. Where, as here, the district court enters summary judgment, we review its ruling de novo. V. THE DOCTRINAL PARAMETERS Putting this appeal into proper perspective requires us to articulate the" }, { "docid": "19285837", "title": "", "text": "re Stanley-Snow), 405 B.R. 11, 17 (1st Cir. BAP 2009). DISCUSSION I. Summary Judgment Bankruptcy Rule 7056 incorporates Federal Rule of Civil Procedure 56(c) govern ing summary judgment. See Fed. R. Bankr.P. 7056. The moving party bears the initial burden of demonstrating that “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a); see also Razzaboni v. Schifano (In re Schifano), 378 F.3d 60, 66 (1st Cir.2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the initial burden is met, the burden shifts to the non-moving party to show that genuine issues of material fact exist. Id. (citing F.D.I.C. v. Ponce, 904 F.2d 740, 742 (1st Cir.1990)). The non-moving party must set forth more than conclusory allegations, improbable inferences or unsupported speculation to establish genuine issues of material fact. Competent evidence is required. Id. (citing Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)); see also Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir.2011) (“Where ... the nonmovant bears the burden of proof on the dispositive issue, it must point to ‘competent evidence’ and ‘specific facts’ to stave off summary judgment.”). Although trial courts are enjoined to view the record in the light most favorable to the non-moving party, “as to any essential factual element of its claim on which the nonmov-ant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trial worthy issue warrants summary judgment to the moving party.” McCrory v. Spigel (In re Spigel), 260 F.3d 27, 31 (1st Cir.2001) (quotations and citations omitted). The gravamen of the Debtors’ argument is difficult to discern from their briefing, but appears to focus on two issues: (1) whether the chain of title to the mortgage is compliant with the terms of the PSA; and (2) whether the agent assigning the mortgage to Deutsche Bank on behalf of MERS had the actual" }, { "docid": "11576929", "title": "", "text": "622 F.3d 46, 49 (1st Cir.2010). The intention of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). “Once the moving party has properly supported [its] motion for summary judgment, the burden shifts to the non-moving party, with respect to each issue on which [it] has the burden of proof, to demonstrate that a trier of fact reasonably could find in [its] favor.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000) (quoting DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997)); Cruz-Claudio v. Garcia Trucking Serv., Inc., 639 F.Supp.2d 198, 203 (D.P.R.2009.) “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Carroll v. Xerox Corp., 294 F.3d 231, 236-37 (1st Cir.2002) (quoting J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1251 (1st Cir.1996)) (“ ‘[Njeither conclusory allegations [nor] improbable inferences’ are sufficient to defeat summary judgment.”) An issue is “genuine” if the evidence of record permits a rationale factfinder to resolve it in favor of either party. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). A fact is “material” if its existence or nonexistence has the potential to change the outcome of the suit. See Martínez v. Colon, 54 F.3d 980, 984 (1st Cir.1995). Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5-6 (1st Cir.2010). The nonmoving party must produce “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. 1348 (quoting Fed. R.Civ.P. 56(e)); see also López-Carrasquillo v. Rubianes, 230 F.3d 409, 413 (1st Cir.2000); Amira-Jabbar v. Travel" }, { "docid": "3636532", "title": "", "text": "152, 154 (D.P.R.1998). B. Summary Judgment Standard The standard for summary judgment is governed by Fed.R.Civ.P. 56. The Court may grant summary judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); See Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000). The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A properly supported motion can be survived only if the non-moving party shows that a trial worthy issue exists. The party opposing the motion cannot rely on an absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. Not every controversy is sufficient to preclude summary judgment. The fact has to be “material” and the dispute must be “genuine.” “Material” means that a contested fact has the potential to change the outcome of a suit. The issue is “genuine” when a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The mere existence of a scintilla of evidence is insufficient to defeat a properly supported motion for summary judgment.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Consequently, in order to defeat the motion, the party opposing summary judgment must present competent evidence supporting its position. Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1994). To make this assessment in a given case, the Court “must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). When carrying out that task, the Court may safely ignore “conclusory allegations, improbable inferences, and unsupported speculation.” Medina-Muñoz" }, { "docid": "8816059", "title": "", "text": "A “material fact” is one that has “the potential to affect the outcome of the suit under the applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505) (additional citation omitted). The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni v. Potter, 369 F.3d 594, 598 (1st Cir.2004). Once the moving party has made this preliminary showing, the nonmoving party must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal punctuation omitted); see also Fed.R.Civ.P. 56(e). “Mere allegations, or conjecture unsupported in the record, are insufficient.” Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir.2011) (quoting Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir.1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir.2011) (“A properly supported summary judgment motion cannot be defeated by conclusory allegations, improbable inferences, periphrastic circumlocutions, or rank speculation.”) (citations omitted). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir.2001) (quoting In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir.1993)). The above-described “standard is not affected by the presence of cross-motions for summary judgment.” Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir.2005) (citation omitted). “[T]he court must mull each motion separately, drawing inferences against each movant in turn.” Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st" }, { "docid": "6481998", "title": "", "text": "deposition.” Dennis v. Osram Sylvania, Inc., No. 06-CV-029-SM, 2007 WL 2783369, at *8 (D.N.H. Sept. 24, 2007). The district court alternatively concluded that even if Dennis had established a prima facie case, Sylvania had fired Dennis for legitimate non-discriminatory reasons such as his poor work performance and the fact that Franz wanted to retain another employee instead of Dennis because of the company’s reduction in force. Id. at *7. Furthermore, the district court explained that summary judgment was appropriate because the factual disputes' arising during Dennis’ deposition testimony in the Green matter with Beck-with and Vient were not material to the resolution of Dennis’ case. Id. at *8-9. II. Sylvania’s Motion for Summary Judgment A. Standard of Review “Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law based on the. pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits.” Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir.2008)(citing Fed. R.Civ.P. 56(c)). “A ‘genuine’ issue is one that could be resolved in favor of either party, and a ‘material fact’ is one that has the potential of affecting the outcome of the case.” Calero-Cerezo v. U.S. Dep’t. of Justice, 355 F.3d 6, 19 (1st Cir,2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “We review summary judgment rulings de novo, construing the record evidence in the light most favorable to the nonmoving party.” Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003). “Even in retaliation cases, ‘where elusive' concepts such as motive or intent are at issue, summary judgment is appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.’ ” Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir.2007) (quoting Benoit, 331 F.3d at 173); see also Thompson, 522 F.3d at 175 (“When considering arguments for summary judgment, ‘we must disregard improbable or overly attenuated inferences, unsupported conclusions, and rank speculation.’ ” (quoting Abbott v. Bragdon, 107 F.3d 934, 938 (1st Cir.1997)))." }, { "docid": "3040453", "title": "", "text": "de P.R., 560 F.3d 14, 15 (1st Cir.2009). Under the abuse of discretion standard, we will not reverse a district court’s discovery order unless it appears that the order “was plainly wrong and resulted in substantial prejudice to the aggrieved party.” Universal Commc’n. Sys. v. Lycos, Inc., 478 F.3d 413, 425 (1st Cir.2007) (quoting Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 38 (1st Cir.2000)). We review a district court’s grant of summary judgment de novo, “resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the nonmoving party.” Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir.2011). “Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Cortes-Rivera v. Dep’t of Corr. & Rehab, of P.R., 626 F.3d 21, 26 (1st Cir.2010). “[W]e are not married to the trial court’s reasoning but, rather, may affirm on any independently sufficient ground made manifest by the record.” Cahoon v. Shelton, 647 F.3d 18, 22 (1st Cir.2011). “The nonmovant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists.” Iverson v. City of Bos., 452 F.3d 94, 98 (1st Cir.2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). However, “a conglomeration of conclusory allegations, improbable inferences, and unsupported speculation is insufficient to discharge the nonmovant’s burden.” DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir.2005) (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)) (internal quotation marks omitted). Rather, “the party seeking to avoid summary judgment ‘must be able to point to specific, competent evidence to support his claim.’ ” Soto-Ocasio v. Fed. Exp. Corp., 150 F.3d 14, 18 (1st Cir.1998) (quoting August v. Offices Unlimited, Inc., 981 F.2d 576, 580 (1st Cir.1992)). B. Denial of Rule 56(f) Request Sánchez argues that the district court erred in refusing to grant his Rule 56(f) request because he could not respond to AT & T’s motion without additional discovery. In Celotex, the Supreme Court" } ]

[ { "docid": "1730296", "title": "", "text": "1010 (1987); Oasis Publishing Co. v. West Publishing Co., 924 F.Supp. 918 (Miim.1996). Judge John Martin of the United States District Court for the Southern District of New York recently rejected West’s copyright claim. See Matthew Bender & Co., Inc. v. West Publishing Co., 94 Civ. 0589 (JSM), 1996 WL 689412 (S.D.N.Y. Nov. 22, 1996). Like Judge Martin, this Court has serious doubts about the continuing vitality of the Eighth Circuit’s 1986 opinion in Mead Data in view of the subsequent decision. of the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991), and it finds unpersuasive the reasoning in Oasis Publishing. In rejecting the “sweat of the brow” doctrine of copyright, the Supreme Court emphasized that the “sine qua non of copyright is originality” and that only those components of a compilation that qualify as an “original work of authorship” can be copyrighted. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. at 345, 357, 111 S.Ct. at 1287, 1293-94. The “selection, coordination and arrangement” of a set of facts can be copyrighted only if they are “sufficiently original to merit protection.” Id. at 358, 111 S.Ct. at 1294. Thus, in order to prevail on its star pagination copyright claim, West would have to demonstrate that its reporter page numbers and their placement themselves represent an original, creative decision about selection or arrangement, a “thin” copyright claim at best. Id. at 349, 111 S.Ct. at 1289. As Judge Martin put it, “where and on what pages the text of a court opinion appears does not embody any original creation of the compiler_ [S]tar pagination does not in any way take advantage of that part of West’s effort in making the compilation that reflects its intellectual effort. It. simply ... reflects the accident of where a particular portion of an opinion ended up in a West reporter.” Matthew Bender & Co., Inc. v. West Publishing Co., 94 Civ. 0589 (JSM), Transcript at 35 (S.D.N.Y. Nov. 22, 1996). Like many of the commentators, the Court is concerned that" } ]

[ { "docid": "7173883", "title": "", "text": "West's cases may be copyrightable, and although complete star pagination may permit the perception of that arrangement, there is no support for extending copyright protection to an unoriginal element because when completely copied it reveals a protected element rather than copies it. .West claims that its arrangement of cases, see supra note 3, is original and worthy of copyright protection. Hyperlaw (but not Bender) argues that West's arrangement of cases in the Supreme Court Reporter and the Federal Reporter (the case reporters containing the opinions included on HyperLaw's CD-ROM discs) is insufficiently original to be copyrightable. But because we find that West's arrangement has not been copied through the insertion of star pagination to West’s case reporters, we can assume without deciding that West’s case reporters contain an original and copyrightable arrangement. In addition, this opinion will not address any copying by plaintiffs of the selection of cases included in West’s case reporters. First, West argued below that Bender had copied West’s arrangement of cases, not its selection. Second, it is uncontested that plaintiffs’ compilations include many more opinions than West's case reporters. For example, HyperLaw's second quarter 1996 CD-ROM disc contained approximately 36,000 Supreme Court and court of appeals decisions, only 22,000 of which were published by West. The selection of cases for Bender's product also differs from West's: (i) it contains many unpublished decisions not found in West’s reporters, and (ii) unlike West’s Federal Reporter, Federal Supplement, and Federal Rules Decisions, Bender’s product includes only federal cases decided by New York courts. Accordingly, we cannot find that the selection of cases in plaintiffs’ compilations is substantially similar to West’s selection. See Tasini v. New York Times Co., 972 F.Supp. 804, 823 (S.D.N.Y.1997) (Sotomayor, J.) (noting that to find infringement of selection, “the subsequent work cannot differ in selection by 'more than a trivial degree’ from the work that preceded it”) (citing Kregos v. Associated Press, 937 F.2d 700, 710 (2d Cir.1991)). . Plaintiffs cite Banks Law Publishing Co. v. Lawyers' Co-Operative Publishing Co., 169 F. 386 (2d Cir.1909), in arguing that star pagination to case reporters is permissible," }, { "docid": "7173852", "title": "", "text": "under the fair use doctrine. See West Reply Brief at 5 n.5 (noting “West’s long-held posi tion that parallel citation to West case reports by competitors (without additional star pagination) is a fair use under 17 U.S.C. § 107 — i.e., an otherwise infringing use that, when analyzed under the § 107 factors, is deemed ‘fair’”); West’s Response to Bender’s Rule 3(g) Statement ¶ 32, Joint Appendix at 1581; see also West Publ’g Co. v. Mead Data Central, Inc., 799 F.2d 1219, 1222 (8th Cir.1986) (“West concedes that citation to the first page of its reports is a noninfringing ‘fair use’ under 17 U.S.C. § 107.”). West admitted at oral argument (as it did in the district court ) that these parallel citations already allow a user of plaintiffs’ CD-ROM discs to perceive West’s arrangement with the aid of a machine and that plaintiffs’ CD-ROM discs therefore already have created a lawful “copy” of West’s arrangement on their CD-ROM discs — as West defines “copy.” Once the copy has thus been created through parallel citation — assuming that anyone would wish to avail themselves of the capability of perceiving this copy — the only incremental data made perceivable (through the aid of a machine) by star pagination is the location of page breaks within each judicial opinion. But since page breaks do not result from any original creation by West, their location may be lawfully copied. We therefore conclude that star pagination’s volume and page numbers merely convey unprotected information, and that their duplication does not infringe West’s copyright. The opposite conclusion was reached by the district court in Oasis Publishing Co. v. West Publishing Co., 924 F.Supp. 918 (D.Minn.1996), which reasoned that the fair-use copying of parallel citation, which could be used to perceive the arrangement of cases, did not excuse copying interior pagination, which could also be used to perceive arrangement. See id. at 926. It is true that copying under the fair use doctrine will not necessarily permit additional uses, and will not excuse additional copying that in the aggregate amounts to infringement. But a compilation has" }, { "docid": "7173839", "title": "", "text": "Judge SWEET dissents in a separate opinion. JACOBS, Circuit Judge: Defendants-appellants West Publishing Co. and West Publishing Corp. (collectively “West”) create and publish printed compilations of federal and state judicial opinions. Plaintiff-appellee Matthew Bender & Company, Inc. and intervenor-plaintiff-appellee Hy-perLaw, Inc. (collectively “plaintiffs”) manufacture and market compilations of judicial opinions stored on compact disc-read only memory (“CD-ROM”) discs, in which opinions they embed (or intend to embed) citations that show the page location of the particular text in West’s printed version of the opinions (so-called “star pagination”). Bender and HyperLaw seek judgment declaring that star pagination will not infringe West’s copyrights in its compilations of judicial opinions. West now appeals from a judgment of the United States District Court for the Southern District of New York (Martin, /.), granting summary judgment of non-infringement to Bender and partial summary judgment of noninfringement to HyperLaw. West’s primary contention on appeal is that star pagination to West’s case reporters allows a user of plaintiffs’ CD-ROM discs (by inputting a series of commands) to “perceive” West’s copyright-protected arrangement of cases, and that plaintiffs’ products (when star pagination is added) are unlawful copies of West’s arrangement. We reject West’s argument for two reasons: A. Even if plaintiffs’ CD-ROM discs (when equipped with star pagination) amounted to unlawful copies of West’s arrangement of cases under the Copyright Act, (i) West has conceded that specification of the initial page of a West case reporter in plaintiffs’ products (“parallel citation”) is permissible under the fair use doctrine, (ii) West’s arrangement may be perceived through parallel citation and thus the plaintiffs may lawfully create a copy of West’s arrangement of cases, (iii) the incremental benefit of star pagination is that it allows the reader to perceive West’s page breaks within each opinion, which are not protected by its copyright, and (iv) therefore star pagination does not create a “copy” of any protected elements of West’s compilations or infringe West’s copyrights. B. In any event, under a proper reading of the Copyright Act, the insertion of star pagination does not amount to infringement of West’s arrangement of cases. BACKGROUND West" }, { "docid": "7173902", "title": "", "text": "in then-work of West’s precise page break information permits the Reporters to be “perceived” by the aid of a computer. Plaintiffs’ inclusion of the selection and arrangement software feature make the perception easy. Even if the focus is placed upon the intervening deliberate act by the Bender or Hyper-law CD-ROM user, liability might attach for contributory infringement, which requires (1) actual knowledge of direct infringement, (2) the ability to police the infringing conduct and (3) derivation of substantial benefit from the actions of the primary infringers. See Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1163 (2d Cir.1971). Finally, the majority dismisses West Publishing Co. on which I rely for lack of author ity. By its ipse dixit, that location by star pagination does not result from the con-eededly original West arrangement of cases, the majority rejects the result obtained by the Eighth. Circuit and attributes it to the preFeist, “now defunct ‘sweat of the brow’ doctrine,” an attribution not warranted by the reliance of the Eighth Circuit upon West’s originality. The question of whether or not Feist overruled West was argued and carefully considered by the Oasis court. Creativity was the issue, and I subscribe to Chief Judge Magnuson’s view of the interrelationship between West and Feist. While the Eighth Circuit did take note of the considerable “labor” exercised by West, it did so in conjunction with a consideration of West’s “talent and judgment” in organizing its compilations. See West Publishing Co., 799 F.2d at 1226 (concluding that West’s arrangement is the result of “considerable labor, talent and judgment”). The Eighth Circuit applied essentially the same creativity standard articulated and applied in Feist. Instead of a mere “sweat of the brow” analysis of West’s selection and arrangement of cases in the National Reporter System, the Court considered the “originality and intellectual creation” requirements of the arrangement. West Publishing Co., 799 F.2d at 1225-26. In West Publishing Co., the Eighth Circuit’s persuasively reasoned that (i) comprehensive pagination, when linked to the text of a compilation, is copyrightable in terms of originality because it expresses the compiler’s expression" }, { "docid": "15400512", "title": "", "text": "There is no support for the proposition that West’s success in achieving an “industry standard” citation arrangement obligates them to donate the material to the public domain. Cf. BellSouth, 999 F.2d at 1444 (industry standard copied from industry association). For the reasons stated, I conclude the summary judgment granted in favor of Hy-perlaw should be reversed. . West also functions as the publisher of slip opinions — i.e., the official versions of court opinions — for the Fifth and Eleventh Circuits, and West does not claim a copyright for any alterations it makes to those slip opinions other than its syllabi, headnotes, and key numbers. . The record seems to indicate that since the commencement of this suit, HyperLaw has combined these two products into one. . Whether insertion of star pagination to West’s case reporters amounts to copying of West’s arrangement of cases is a separate question we address in the other opinion issued today. See Matthew Bender & Co. v. West Publ’g Co., 158 F.3d at 693. . West initially claimed some creativity in its corrections to the text of opinions, but it has abandoned this claim, presumably because these corrections either are trivial (i.e., punctuation or spelling), or else (nearly always) approved by the courts by order or informal means. . We have previously explained that the protection of compilations “is consistent with the objectives of the copyright law ... to promote the advancement of knowledge and learning by giving authors economic incentives ... to labor on creative, knowledge-enriching works” because compilations “that devise new and useful selections and arrangements of information ... contribute to public knowledge by providing cheaper, easier, and better organized access to information.” CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61, 65-66 (2d Cir.1994). Without that financial incentive, such compilations would not be created. Id. at 66. Nevertheless, it is not a goal of copyright law to promote the production of compilations which lack sufficient creativity. . West offered as evidence at trial memoranda to its editors concerning caption alterations. Review of these memoranda demonstrates that they are" }, { "docid": "7173871", "title": "", "text": "distribution of such materials or equipment constitutes contributory infringement, and thus to bring them within the scope of the copyright owner's control, may enable the copyright owner to influence the price and availability of goods that are not directly connected to its copyrighted work.\"). The same rationale applies here: West has a thin copyright in its compilations, which it seeks to leverage to protect its pagination (an element of its compilation that is unprotected altogether) and thereby to foreclose (or draw royalties from) CD-ROM products that might be used incidentally to replicate West's arrangement of cases, but that have substantial, predominant and noninfringing uses as tools for research and citation. C We differ with the Eighth Circuit's opinion in West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219 (8th Cir.1986). In that case, LEXIS (an on-line database provider) announced plans to star paginate its on-line version of cases to West case reporters. West claimed that the star pagination would allow users to page through cases as if they were reading West volumes, and in that way copied West's arrangement of cases. Id. at 1222. The court held that \"West's arrangement is a copyrightable aspect of its compilation of cases, that the pagination of West's volumes reflects and expresses West's arrangement, and that MD C's intended use of West's page numbers infringes West's copyright in the arrangement.\" Id. at 1223. Even if it was not \"possible to use LEXIS to page through cases as they are arranged in West volumes,\" the court said that insertion of comprehensive star pagination amounted to infringement: Jump cites to West volumes within a case on LEXIS are infringing because they enable LEXIS users to discern the precise location in West's arrangement of the portion of the opinion being viewed. With [LEXIS's] star pagination, consumers would no longer need to purchase West's reporters to get every aspect of West's arrangement. Since knowledge of the location of opinions and parts of opinions within West's arrangement is a large part of the reason one would purchase West's volumes, the LEXIS star pagination feature would adversely affect" }, { "docid": "15400464", "title": "", "text": "intends to achieve this expansion by copying West’s case reports (after redacting the syllabi, headnotes and key numbers) from the Supreme Court Reporter and the Federal Reporter. The total number of opinions HyperLaw intends to copy is unclear; but HyperLaw’s President Alan Sugarman testified that in time it could reach 50 percent of Supreme Court and court of appeals decisions published by West. Following the commencement of suit by Matthew Bender & Co. in the United States District Court for the Southern District of New York seeking a judgment declaring that Bender’s insertion of star pagination to West’s case reporters in its CD-ROM version of judicial opinions did not infringe West’s copyright, HyperLaw intervened and requested the same relief. In addition, Hy-perLaw sought a declaration that Hyper-Law’s redacted versions of West’s case reports contain no copyrightable material and thus may be copied without infringement. On the star pagination issue, the district court granted summary judgment to Bender and HyperLaw, and final judgment was entered pursuant to Fed.R.Civ.P. 54(b). (We affirm that ruling in a separate opinion issued today). See Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 693 (2d Cir.1998). But the district court denied summary judgment allowing HyperLaw to copy redacted versions of West’s case reports, and conducted a bench trial on this issue. The principal trial witness was Donna Bergsgaard, the manager of West’s manuscript department. She specified four kinds of alterations made by West to the opinions that it publishes in the Supreme Court Reporter and Federal Reporter and that Hyper-Law intends to copy: (i) the arrangement of prefatory information, such as parties, court, and date of decision; (ii) the selection and arrangement of the attorney information; (iii) the arrangement of information relating to subsequent procedural developments; and (iv) the selection of parallel and alternative citations. Following the bench trial, the district court ruled that West’s revisions to judicial opinions were merely trivial variations from the public domain works, and that West’s case reports were therefore not copyrightable as derivative works. Matthew Bender & Co., 1997 WL 266972 at *4. In reaching this conclusion, the" }, { "docid": "7173849", "title": "", "text": "The “originality” requirement encompasses requirements both “that the work was independently created ..., and that it possesses at least some minimal degree of creativity.” Id. at 345, 111 S.Ct. at 1287 (emphasis added); see also Key Publications, Inc. v. Chinatown Today Publ'g Enters., Inc., 945 F.2d 509, 512-13 (2d Cir.1991) (“Simply stated, original means not copied, and exhibiting a minimal amount of creativity.”). At issue here are references to West’s volume and page numbers distributed through the text of plaintiffs’ versions of judicial opinions. West concedes that the pagination of its volumes — i.e., the insertion of page breaks and the assignment of page numbers — is determined by an automatic computer program, and West does not seriously claim that there is anything original or creative in that process. As Judge Martin noted, “where and on what particular pages the text of a court opinion appears does not embody any original creation of the compiler.” Because the internal pagination of West’s case reporters does not entail even a modicum of creativity, the volume and page numbers are not original components of West’s compilations and are not themselves protected by West’s compilation copyright. See Feist, 499 U.S. at 363, 111 S.Ct. at 1297 (“As a constitutional matter, copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity.”). Because the volume and page numbers are unprotected features of West’s compilation process, they may be copied without infringing West’s copyright. However, West proffers an alternative argument based on the fact (which West has plausibly demonstrated) that plaintiffs have inserted or will insert all of West’s volume and page numbers for certain case reporters. West’s alternative argument is that even though the page numbering is not (by itself) a protectable element of West’s compilation, (i) plaintiffs’ star pagination to West’s case reporters embeds West’s arrangement of cases in plaintiffs’ CD-ROM discs, thereby allowing a user to perceive West’s protected arrangement through the plaintiffs’ file-retrieval programs, and (ii) that under the Copyright Act’s definition of “copies,” 17 U.S.C. § 101, a work that allows the perception" }, { "docid": "7173845", "title": "", "text": "the case beginning on the same or next West page number. HyperLaw markets Supreme Court on Disc, an annual CD-ROM disc containing opinions of the United States Supreme Court since 1991, and Federal Appeals on Disc, a quarterly CD-ROM disc containing nearly all opinions (published and unpublished) of the federal courts of appeals since January 1993. HyperLaw currently obtains the text of its opinions directly from the courts and includes in its Federal Appeals CD-ROM disc many more cases than published by West. The opinions are organized on the CD-ROM disc in an order that is “approximately chronological.” HyperLaw includes parallel citations to West’s case reporters for all cases appearing in the Supreme Court Reporter and the Federal Reporter, and intends to add star pagination as well. Bender’s complaint sought a judgment declaring that star pagination to West’s case reporters will not copy West’s arrangement or infringe West’s copyright. HyperLaw intervened seeking the same relief. All parties then moved for summary judgment. The district court granted summary judgment to plaintiffs on the star pagination issue, concluding that the insertion of star pagination to West’s volumes on the CD-ROM version of the cases would not reproduce any pro-tectable element of West’s compilation. The court noted that “the protection extends only to those aspects of the compilation that embody the original creation of the compiler” and that “where and on what particular pages the text of a court opinion appears does not embody any original creation of the compiler, and therefore ... is not entitled to protection.” The court further ruled that star pagination would be permitted under the fair use doctrine even if West’s pagination were copyrightable. DISCUSSION West’s case reporters are compilations of judicial opinions. The Copyright Act defines a “compilation” as “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” 17 U.S.C. § 101 (1994). Compilations are copyrightable, but the copyright “extends only to the material contributed by the author of" }, { "docid": "7173876", "title": "", "text": "opinion to indicate when a page break occurs in a different version of the case. . The district court granted summary judgment to HyperLaw on the star pagination issue. However, HyperLaw had sought an additional declaration that its duplication of West’s version of the captions and text of judicial opinions does not infringe West's copyright. The district court denied summary judgment on that claim, and ruled for HyperLaw following a bench trial. West appeals from that decision as well and we uphold that ruling in a separate opinion issued today. See Matthew Bender & Co. v. West Publ'g Co., 158 F.3d 674 (2d Cir.1998). . West’s general arrangement of its case reporters is as follows (with each subsequent category dictating the order of cases within the previous category): Supreme Court Reporter: Cases are organized: (i) by type of opinion (full opinion, then orders and memorandum decisions); (ii) then by order of the filing date; (iii) then by the seniority of the Justice who authored the opinion (per curiam opinions follow opinions authored by individual justices); and (iv) then by docket number. Federal Reporter: Cases are organized in advance sheets: (i) by court (first the D.C. Circuit, then the numbered Circuits, and finally the Federal Circuit); (ii) then by type of opinion (first opinions and jacketed memo-randa, then \"sheet memoranda\"; cases reported in tables are placed together at the end of the advance sheet); and (iii) then chronologically. Two or three advance sheets are then combined in a permanent volume. Federal Supplement and Federal Rules Decisions: Cases are organized in advance sheets: (i) by circuit; (ii) then alphabetically by state; (iii) then if a state has multiple districts in the following order: Northern, Central, Middle, Eastern, Western and Southern; and (iv) then chronologically. The advance sheets are then combined into a bound volume. New York Supplement: Cases are organized in advance sheets: (i) by format, such as fully headnoted opinions and memorandum decisions; (ii) then by court level; (iii) then by department; and (iv) then chronologically. The advance sheets are then combined into a bound volume. These general guidelines are subject" }, { "docid": "7173875", "title": "", "text": "compiling,” West Publ’g Co., 799 F.2d at 1227, and (ii) cited Hutchinson Telephone v. Fronteer Directory Co., 770 F.2d 128 (8th Cir.1985), see West Publ’g Co., 799 F.2d at 1228, which in turn relied on Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484 (9th Cir.1937), and Jeweler’s Circular Pub Co v. Keystone Pub Co, 281 F. 83 (C.C.A.Cir.1922) — classic “sweat of the brow” cases that were overruled in Feist. Thus, the Eighth Circuit in West Publishing Co. erroneously protected West’s industrious collection rather than its original creation. Because Feist undermines the reasoning of West Publishing Co., see United States v. Thomson Corp., 949 F.Supp. 907, 926 (D.D.C.1996), we decline to follow it. CONCLUSION We hold that Bender and HyperLaw will not infringe West’s copyright by inserting star pagination to West’s case reporters in their CD-ROM disc version of judicial opinions. The judgement of the district court is affirmed. . This cross-reference method is called “star pagination” because an asterisk and citation or page number are inserted in the text of the judicial opinion to indicate when a page break occurs in a different version of the case. . The district court granted summary judgment to HyperLaw on the star pagination issue. However, HyperLaw had sought an additional declaration that its duplication of West’s version of the captions and text of judicial opinions does not infringe West's copyright. The district court denied summary judgment on that claim, and ruled for HyperLaw following a bench trial. West appeals from that decision as well and we uphold that ruling in a separate opinion issued today. See Matthew Bender & Co. v. West Publ'g Co., 158 F.3d 674 (2d Cir.1998). . West’s general arrangement of its case reporters is as follows (with each subsequent category dictating the order of cases within the previous category): Supreme Court Reporter: Cases are organized: (i) by type of opinion (full opinion, then orders and memorandum decisions); (ii) then by order of the filing date; (iii) then by the seniority of the Justice who authored the opinion (per curiam opinions follow opinions authored by individual justices);" }, { "docid": "7173872", "title": "", "text": "in that way copied West's arrangement of cases. Id. at 1222. The court held that \"West's arrangement is a copyrightable aspect of its compilation of cases, that the pagination of West's volumes reflects and expresses West's arrangement, and that MD C's intended use of West's page numbers infringes West's copyright in the arrangement.\" Id. at 1223. Even if it was not \"possible to use LEXIS to page through cases as they are arranged in West volumes,\" the court said that insertion of comprehensive star pagination amounted to infringement: Jump cites to West volumes within a case on LEXIS are infringing because they enable LEXIS users to discern the precise location in West's arrangement of the portion of the opinion being viewed. With [LEXIS's] star pagination, consumers would no longer need to purchase West's reporters to get every aspect of West's arrangement. Since knowledge of the location of opinions and parts of opinions within West's arrangement is a large part of the reason one would purchase West's volumes, the LEXIS star pagination feature would adversely affect West's market position. \"[A] use that supplants any part of the normal market for a copyrighted work would ordinarily be considered an infringement.\" S.Rep. No. 473, 94th Cong., 1st Sess. 65 (1975). Id. at 1227-28; see also Oasis Publ’g Co. v. West Publ’g Co., 924 F.Supp. 918, 922-25 (D.Minn.1996) (holding that (i) West Publishing Co. had not been overruled by Feist’s disavowal of the “sweat of the brow” doctrine, and (ü) that even if it had, “the internal pagination of [West’s reporter] is part of West’s overall arrangement, and similarly protected”). The Eighth Circuit in West Publishing Co. adduces no authority for protecting pagination as a “reflection” of arrangement, and does not explain how the insertion of star pagination creates a “copy” featuring an arrangement of cases substantially similar to West’s — rather than a dissimilar arrangement that simply references the location of text in West’s case reporters and incidentally simplifies the task of someone who wants to reproduce West’s arrangement of eases. It is true that star pagination enables users to locate (as closely" }, { "docid": "7173848", "title": "", "text": "facts contained in another’s publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement.” Id. at 349, 111 S.Ct. at 1289. The Court expressly rejected the “sweat of the brow” doctrine, which had justified the extension of copyright protection to the facts and other non-original elements of compilations on the basis of the labor invested in obtaining and organizing the information. Id. 359-60, 111 S.Ct. at 1295. Under Feist, two elements must be proven to establish infringement: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Id. at 361, 111 S.Ct. at 1296. Bender and HyperLaw concede that West has proven the first element of infringement, i.e., that West owns a valid copyright in each of its case reporters. However, as is clear from the second Feist element, copyright protection in compilations “may extend only to those components of a work that are original to the author.” Id. at 348, 111 S.Ct. at 1289. The “originality” requirement encompasses requirements both “that the work was independently created ..., and that it possesses at least some minimal degree of creativity.” Id. at 345, 111 S.Ct. at 1287 (emphasis added); see also Key Publications, Inc. v. Chinatown Today Publ'g Enters., Inc., 945 F.2d 509, 512-13 (2d Cir.1991) (“Simply stated, original means not copied, and exhibiting a minimal amount of creativity.”). At issue here are references to West’s volume and page numbers distributed through the text of plaintiffs’ versions of judicial opinions. West concedes that the pagination of its volumes — i.e., the insertion of page breaks and the assignment of page numbers — is determined by an automatic computer program, and West does not seriously claim that there is anything original or creative in that process. As Judge Martin noted, “where and on what particular pages the text of a court opinion appears does not embody any original creation of the compiler.” Because the internal pagination of West’s case reporters does not entail even a modicum of creativity, the volume and page" }, { "docid": "7173895", "title": "", "text": "three other courts which have considered the issue, West Pub. Co. v. Mead Data Central, Inc., 616 F.Supp. 1571 (D.Minn.1985), aff'd, 799 F.2d 1219 (8th Cir.1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987); Oasis Pub. Co. v. West Pub. Co., 924 F.Supp. 918 (D.Minn.1996), and reached conclusions contrary to those stated by the majority. By concluding that page numbers in the context of the West citation system are facts rather than an expression of originality the majority permits the appellee Bender and the interve-nor Hyperlaw to appropriate the practical and commercial value of the West compilation. The West page numbers which are inserted by appellee Bender in the text of each of its CD-ROM disks by star pagination result from the totality of the West compilation process which includes its concededly original and copyrightable work, i.e. attorney description, headnotes, method of citation and emending of parallel or alternate citations. These result in a compilation work with page numbers assigned mechanically. The West page numbers and the corresponding Bender and Hyperlaw star pagination are the keys which open the door to the entire West citation system which as the majority noted is an accepted, and in some instances, a required element for the citation of authorities. The majority initially assumes the copy-rightability of the West work but cites the statement in Feist Publications, Inc., v. Rural Telephone Service Company, Inc., 499 U.S. 340, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991), that “a factual compilation is eligible for copyright if it features an original selection or arrangement of the facts, but the copyright is limited to the particular selection or arrangement. In no event may copyright extend to the facts themselves.” 499 U.S. 340 at 350-51, 111 S.Ct. 1282, 113 L.Ed.2d 358, and its conclusion that the compiler’s copyright is “thin” permitting a subsequent compiler to use facts “so long as the competing work does not feature the same selection and arrangement.” Id. By characterizing star pagination as a fact, rather than as an essential part of the selection or arrangement the majority deprives the West pagination" }, { "docid": "15400463", "title": "", "text": "which contains, inter alia, all Supreme Court opinions and memorandum decisions; and the Federal Reporter, which contains, inter alia, all United States Court of Appeals opinions designated for publication, as well as tables showing the disposition of unpublished cases. HyperLaw markets two compilations that cover approximately the same ground: Supreme Court on Disc, an annual CD-ROM disc containing opinions of the United States Supreme Court starting from 1990; and Federal Appeals on Disc, a quarterly CD-ROM disc containing nearly all opinions (published and unpublished) of the United States Courts of Appeals from January 1993 on. Currently, HyperLaw obtains the text of the opinions directly from the courts. However, Hyper-Law intends to expand its CD-ROM product to include any recent cases it could not obtain directly from the courts (and attorney information that is omitted from slip opinions by certain circuits), as well as pre-1990 Supreme Court cases and pre-1993 court of appeals cases that are cited in recent Supreme Court and court of appeals eases (so that users can jump to those cases). Hyper- Law intends to achieve this expansion by copying West’s case reports (after redacting the syllabi, headnotes and key numbers) from the Supreme Court Reporter and the Federal Reporter. The total number of opinions HyperLaw intends to copy is unclear; but HyperLaw’s President Alan Sugarman testified that in time it could reach 50 percent of Supreme Court and court of appeals decisions published by West. Following the commencement of suit by Matthew Bender & Co. in the United States District Court for the Southern District of New York seeking a judgment declaring that Bender’s insertion of star pagination to West’s case reporters in its CD-ROM version of judicial opinions did not infringe West’s copyright, HyperLaw intervened and requested the same relief. In addition, Hy-perLaw sought a declaration that Hyper-Law’s redacted versions of West’s case reports contain no copyrightable material and thus may be copied without infringement. On the star pagination issue, the district court granted summary judgment to Bender and HyperLaw, and final judgment was entered pursuant to Fed.R.Civ.P. 54(b). (We affirm that ruling in a separate" }, { "docid": "7173903", "title": "", "text": "question of whether or not Feist overruled West was argued and carefully considered by the Oasis court. Creativity was the issue, and I subscribe to Chief Judge Magnuson’s view of the interrelationship between West and Feist. While the Eighth Circuit did take note of the considerable “labor” exercised by West, it did so in conjunction with a consideration of West’s “talent and judgment” in organizing its compilations. See West Publishing Co., 799 F.2d at 1226 (concluding that West’s arrangement is the result of “considerable labor, talent and judgment”). The Eighth Circuit applied essentially the same creativity standard articulated and applied in Feist. Instead of a mere “sweat of the brow” analysis of West’s selection and arrangement of cases in the National Reporter System, the Court considered the “originality and intellectual creation” requirements of the arrangement. West Publishing Co., 799 F.2d at 1225-26. In West Publishing Co., the Eighth Circuit’s persuasively reasoned that (i) comprehensive pagination, when linked to the text of a compilation, is copyrightable in terms of originality because it expresses the compiler’s expression and arrangement, and (ii) a compilation’s selection and arrangement is copied when comprehensive cross-pagination is inserted into an electronic database containing the compilation’s text. 799 F.2d at 1227-28. Because of the views set forth above, I believe the District Court erred in not granting copyright protection to West. In addition, the District Court granted summary judgment for plaintiffs on their contention that their acts were permitted as “fair use.” The resolution of this issue, factually contested, required a trial and the reversal of the grant of summary judgment. See, e.g., Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir.1997); see also Wright v. Warner Books, Inc., 953 F.2d 731, 735 (2d Cir.1991) (stating that while the copyright holder is not protected from summary disposition of claims where there are no material factual disputes, the “the fact driven nature of the fair use determination suggests that a district court should be cautious in granting Rule 56 motions in this area”). For these reasons I believe the grant of summary judgment granting the declaratory judgment" }, { "docid": "7173874", "title": "", "text": "as is useful) a piece of text within the West volume. But this location does not result in any proximate way from West’s original arrangement of cases (or any other exercise of original creation) and may be lawfully copied So any damage to the marketability of West’s reporters resulting from such copying is not cognizable under the Copyright Act. It is interesting that the Eighth Circuit’s quotation from the Senate Report on supplanting use is drawn from the Report’s discussion of the fair use doctrine, which applies only when the copyright holder has first demonstrated infringement of a pro-tectable element of its work. At bottom, West Publishing Co. rests upon the now defunct “sweat of the brow” doctrine. That court found that LEXIS had infringed West’s copyright simply because it supplanted much of the need for West’s ease reporters through wholesale appropriation of West’s page numbers. In reaching this conclusion, the court (i) noted that LEXIS’s appropriation would deprive West of a large part of what it “[had] spent so much labor and industry in compiling,” West Publ’g Co., 799 F.2d at 1227, and (ii) cited Hutchinson Telephone v. Fronteer Directory Co., 770 F.2d 128 (8th Cir.1985), see West Publ’g Co., 799 F.2d at 1228, which in turn relied on Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484 (9th Cir.1937), and Jeweler’s Circular Pub Co v. Keystone Pub Co, 281 F. 83 (C.C.A.Cir.1922) — classic “sweat of the brow” cases that were overruled in Feist. Thus, the Eighth Circuit in West Publishing Co. erroneously protected West’s industrious collection rather than its original creation. Because Feist undermines the reasoning of West Publishing Co., see United States v. Thomson Corp., 949 F.Supp. 907, 926 (D.D.C.1996), we decline to follow it. CONCLUSION We hold that Bender and HyperLaw will not infringe West’s copyright by inserting star pagination to West’s case reporters in their CD-ROM disc version of judicial opinions. The judgement of the district court is affirmed. . This cross-reference method is called “star pagination” because an asterisk and citation or page number are inserted in the text of the judicial" }, { "docid": "7173844", "title": "", "text": "the West volume (e.g., *104 or 100 F.3d 104). Bender uses the FOLIO file-retrieval program, which allows a user to access opinions in several ways, including in the order in which they are stored on the disc, or through term searches, or through a West or LEXIS parallel or page citation. In addition, citations appearing within judicial opinions are “hot linked,” so that a user may retrieve the cited ease by clicking the mouse on the case citation. West claims (and for the purposes of this summary judgment motion, we accept as true) that the FOLIO retrieval system permits a user of Bender’s product to view (and print) judicial opinions in the same order in which they are printed in a West volume by repeating the following steps: (i) a user activates the jump feature in the program to go to the first page in a West case reporter volume, (ii) pages through to the bottom of the ease, (iii) finds the last star pagination reference, and (iv) activates the jump cite feature to retrieve the case beginning on the same or next West page number. HyperLaw markets Supreme Court on Disc, an annual CD-ROM disc containing opinions of the United States Supreme Court since 1991, and Federal Appeals on Disc, a quarterly CD-ROM disc containing nearly all opinions (published and unpublished) of the federal courts of appeals since January 1993. HyperLaw currently obtains the text of its opinions directly from the courts and includes in its Federal Appeals CD-ROM disc many more cases than published by West. The opinions are organized on the CD-ROM disc in an order that is “approximately chronological.” HyperLaw includes parallel citations to West’s case reporters for all cases appearing in the Supreme Court Reporter and the Federal Reporter, and intends to add star pagination as well. Bender’s complaint sought a judgment declaring that star pagination to West’s case reporters will not copy West’s arrangement or infringe West’s copyright. HyperLaw intervened seeking the same relief. All parties then moved for summary judgment. The district court granted summary judgment to plaintiffs on the star pagination issue," }, { "docid": "7173873", "title": "", "text": "West's market position. \"[A] use that supplants any part of the normal market for a copyrighted work would ordinarily be considered an infringement.\" S.Rep. No. 473, 94th Cong., 1st Sess. 65 (1975). Id. at 1227-28; see also Oasis Publ’g Co. v. West Publ’g Co., 924 F.Supp. 918, 922-25 (D.Minn.1996) (holding that (i) West Publishing Co. had not been overruled by Feist’s disavowal of the “sweat of the brow” doctrine, and (ü) that even if it had, “the internal pagination of [West’s reporter] is part of West’s overall arrangement, and similarly protected”). The Eighth Circuit in West Publishing Co. adduces no authority for protecting pagination as a “reflection” of arrangement, and does not explain how the insertion of star pagination creates a “copy” featuring an arrangement of cases substantially similar to West’s — rather than a dissimilar arrangement that simply references the location of text in West’s case reporters and incidentally simplifies the task of someone who wants to reproduce West’s arrangement of eases. It is true that star pagination enables users to locate (as closely as is useful) a piece of text within the West volume. But this location does not result in any proximate way from West’s original arrangement of cases (or any other exercise of original creation) and may be lawfully copied So any damage to the marketability of West’s reporters resulting from such copying is not cognizable under the Copyright Act. It is interesting that the Eighth Circuit’s quotation from the Senate Report on supplanting use is drawn from the Report’s discussion of the fair use doctrine, which applies only when the copyright holder has first demonstrated infringement of a pro-tectable element of its work. At bottom, West Publishing Co. rests upon the now defunct “sweat of the brow” doctrine. That court found that LEXIS had infringed West’s copyright simply because it supplanted much of the need for West’s ease reporters through wholesale appropriation of West’s page numbers. In reaching this conclusion, the court (i) noted that LEXIS’s appropriation would deprive West of a large part of what it “[had] spent so much labor and industry in" }, { "docid": "7173894", "title": "", "text": "to supervise the infringing conduct). . Even if the \"substantial noninfringing use\" test does not apply beyond the context of staple articles of commerce, it is hard to say that plaintiffs, with knowledge of the infringing activity, \"materially contribute[dl\" to the direct infringement of West's copyright, see Gershwin Publ'g Corp., 443 F.2d at 1162, because no showing of knowledge has been made, the infringement itself (if done) would have been pointless, and the predominant uses of plaintiffs' products are non-infringing. SWEET, District Judge. I respectfully dissent. This appeal from the grant of summary judgment in favor of the appellee Bender presents challenging issues, the extent of copyright protection for compilations under the § 501(a) and § 106(1) and (3) of Title 17, U.S.C., what constitutes copying in the electronic age, and the propriety of summary judgment in determining issues of fair use. Because the majority reaches conclusions on the first two issues, with which I disagree, and consequently failed to address the third issue, I feel required to dissent, emboldened by the holdings of the three other courts which have considered the issue, West Pub. Co. v. Mead Data Central, Inc., 616 F.Supp. 1571 (D.Minn.1985), aff'd, 799 F.2d 1219 (8th Cir.1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987); Oasis Pub. Co. v. West Pub. Co., 924 F.Supp. 918 (D.Minn.1996), and reached conclusions contrary to those stated by the majority. By concluding that page numbers in the context of the West citation system are facts rather than an expression of originality the majority permits the appellee Bender and the interve-nor Hyperlaw to appropriate the practical and commercial value of the West compilation. The West page numbers which are inserted by appellee Bender in the text of each of its CD-ROM disks by star pagination result from the totality of the West compilation process which includes its concededly original and copyrightable work, i.e. attorney description, headnotes, method of citation and emending of parallel or alternate citations. These result in a compilation work with page numbers assigned mechanically. The West page numbers and the corresponding Bender and Hyperlaw" } ]

[ { "docid": "23101829", "title": "", "text": "partner— the friendly bartender or the trusted stockbroker are examples — this would tend to show that a genuine business reason prompted the covenant. Such reputation or character would also form part of the good will. However, the question is one of fact and not one of classification as “severable” or “nonseverable”. The rules enunciated herein, namely, that in proper cases the commissioner can go beyond the formal dealings of the parties to see if these forms reflect meaningful substance — are elementary in the law of taxation and find support in the Supreme Court. See Commissioner of Internal Revenue v. Court Holding Co., 1945, 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 and Gregory v. Helvering, 1935, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, as well as in Ninth Circuit cases, Particelli v. Commissioner, 1954, 9 Cir., 212 F.2d 498 and Kirschenmann v. Westover, 1955, 9 Cir., 225 F.2d 69, certiorari denied 350 U.S. 834, 76 S.Ct. 70, 100 L.Ed. 744. These rules are consistent with the recent Ninth Circuit case of Rogers v. U. S., 9 Cir., 290 F.2d 501 and with the case of Hamlin’s Trust v. Commissioner, 10 Cir., 1954, 209 F.2d 761 which was cited in Rogers. Admittedly, both courts relied heavily on the formal means which the parties used. However, there it was the parties rather than the Commissioner who sought to vary the formal instruments. See Higgins v. Smith, 1940, 308 U.S. 473, 477, 60 S.Ct. 355, 84 L.Ed. 406. Of course, it is clear that we do not agree with the dicta found in Hamlin’s Trust case regarding the covenant as severable or nonseverable, 209 F.2d 761 at 765. In summary, we agree with so much of the Tax Court’s opinion as deals, with the factual inquiry and the conclusions thereon. We do not think that the classification of the alleged covenant as severable or nonseverable is helpful in making this determination. Partnership Income for February 1952. We agree with the Tax Court that the partnership between Landen and the “continuing partners” ceased as of January 31, 1952, in" } ]

[ { "docid": "6583444", "title": "", "text": "Circuit’s Danielson rule. Forward Communications Corp. v. United States, 221 Ct.Cl. 582, 593-97, 608 F.2d 485, 490-93 (1979); Proulx v. United States, 219 Ct.Cl. 363, 378, 594 F.2d 832, 836-40 (1979) (per curiam); Davee v. United States, 195 Ct.Cl. 184, 196, 444 F.2d 557, 564 (1971); Eckstein v. United States, 196 Ct.Cl. 644, 655, 452 F.2d 1036, 1042 (1971) (per curiam). Moreover, their adoption has not been confined to cases involving covenants not to compete. See Dakan v. United States, 203 Ct.Cl. 655, 666-67, 492 F.2d 1192, 1199 (1974). In fact, the Federal Circuit’s recent decisions in Lane Bryant, Inc. v. United States, 35 F.3d 1570 (Fed.Cir.1994), and Stokely-Van Camp, Inc. v. United States, 974 F.2d 1319 (Fed.Cir.1992), reaffirmed earlier adherence to the Danielson rule. In Lane Bryant, plaintiff purchased shares of stock under two separate agreements. 35 F.3d at 1572. The agreements each specified a per share price in excess of the fair market value for the stock. Id. at 1574. Although the agreements contained provisions providing for “nonstock items” including “cessation of present and future litigation, payment of transfer taxes, warranties of authorization and title, ... waiver of dividend rights” and an agreement by the seller not to purchase plaintiff’s stock for five years, the agreement did not explicitly allocate any portion of the monetary payment to these provisions. Id. at 1572. Nonetheless, Lane Bryant asserted that the parties intended to compensate for these items through payment of the purchase price premium above the fair market value of the stock. Id. at 1574. Accordingly, Lane Bryant contended that it was permitted to deduct the premium paid for the shares as ordinary and necessary business expenses pursuant to § 162(a) of the I.R.C. Id. at 1573. In rejecting Lane Bryant’s claim and affirming the Court of Federal Claims’ summary judgment for defendant, the Federal Circuit held that the Danielson rule governs instances where an agreement explicitly allocates monetary consideration between stock and nonstock items. Id. at 1575. When parties have explicitly made such an allocation, the court reasoned, they have “presumably reflected] their allocation of anticipated tax benefits and" }, { "docid": "18614783", "title": "", "text": "and burdens. Danielson, 378 F.2d at 775. Giving strict credence to that presumption aids the tax collector in avoiding the whipsaw of later inconsistent positions by those parties. Id. That one of the parties later sees tax benefits to be reaped from some other allocation is irrelevant. Proulx, 594 F.2d at 840 (quoting Hamlin’s Trust v. Commissioner, 209 F.2d 761, 765 (10th Cir.1954)). In sum, the Danielson rule requires that we take the allocation made by the parties at face value for tax purposes, regardless of what we might think of the “economic realities” which drove the deal. Compare Schulz v. Commissioner, 294 F.2d 52, 55 (9th Cir.1961). CONCLUSION Lane has not shown that the Court of Federal Claims erred in applying the Daniel-son rule to the situation before us. There were no genuine factual issues in dispute, and the Court of Federal Claims properly granted summary judgment for the Government. AFFIRMED. . The Limited acquired Lane in May 1982, after the end of the tax year at issue in this case. The Limited filed an amended return and claim for refund on behalf of Lane in 1988. . Unless otherwise noted, all section references are to the Internal Revenue Code of 1954, as amended and in effect during 1981, the tax year at issue. .Lane asserts that the two shareholders were acting in concert. . The Lane Board of Directors explicitly authorized negotiation of a standstill agreement with Hatleigh, but not with Mico. Lane alleges that this is because the Board did not think an agreement with Mico was necessary “because, based on Mico's passive role as an investor and because of its implicit partnership with Hatleigh ... by obtaining the Hatleigh standstill, it effectively obtained the same from Mico.” . The chairman of Hatleigh represented both shareholders in the negotiations. . Lane alleges that the $0.50 per share in excess of the Mico price was intended to \"reimburse partially Hatleigh for its potential liability for short swing profits under Section 16(b) of the Securities and Exchange Act of 1934.” . Since Mico had not purchased Lane stock within" }, { "docid": "18614773", "title": "", "text": "had incorrectly denied Lane’s deductions and that it therefore was entitled to a refund. On September 24, 1991, the Court of Federal Claims heard oral argument on the government’s motions for summary judgment and for sanctions under Rule 11. At close of oral argument, the Court of Federal Claims denied the motion for sanctions and by written order granted the motion for summary judgment. The Court of Federal Claims summarized the facts described above, set forth the relevant provisions of the Hatleigh and Mico agreements, and concluded: Neither the Hatleigh agreement nor the Mico agreement made any allocation of the aggregate amount paid to Lane Bryant as to any of the non-stock items plaintiffs identify as the basis for a premium. There is no allocation for an amount paid for the “standstill” agreement. Ct.Fed.Cl.Op. at 3. Since no consideration had been allocated to the non-stock items, there was nothing for Lane to deduct or amortize. The court acknowledged Lane’s argument that the premium was intended as payment for the non-stock items, but concluded that in the “absence of a specific allocation for the non-stock items, the ‘intent’ of the contracting parties is irrelevant.” Id. at 4-5. The court followed the so-called Danielson rule, discussed infra, which essentially requires that the tax effects of an agreement flow strictly from the agreement as written. Id. at 5. Lane attempted to avoid the Danielson rule by arguing that it barred repudiation of clear allocations, but was inapplicable in the case of “lump-sum” purchase agreements with no clear allocation of monetary consideration. Assessment of the tax effects of such lump-sum agreements would require an inquiry into the allocative intent of the parties. See KFOX, Inc. v. United States, 206 Ct.Cl. 143, 510 F.2d 1365, 1370 (1975). Lane argued that its agreements with Hatleigh and Mico were such lump-sum agreements, the per share price in section 1 of each agreement being only a “convenient shorthand description of the aggregate bargained-for consideration.” Lane further argued that the agreements did not contain a more accurate allocation of the consideration “because time did not permit such fine detail.”" }, { "docid": "7072941", "title": "", "text": "378 F.2d at 775. If the other party cannot rely on the agreement to predict tax consequences, then the making of such agreements will be hindered. Schatten, 746 F.2d at 322. “By fostering an increased predictability that the parties’ contractual allocation will control the tax consequences that will attend such agreements, the Daniel-son rule encourages parties to take such considerations into account when forming their bargain.” Sullivan, 618 F.2d at 1004-05. Of course, the taxpayers cannot rely merely on the form of their transaction to predict the tax consequences. The Commissioner is not bound by the form and can look through the form of a taxpayer’s transaction to its substance in determining the proper effect for taxation. E.g., Commissioner v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 708, 89 L.Ed. 981 (1945). The Danielson rule-does, however, increase the predictability of tax results by preventing one party to an agreement from unilaterally reforming the agreement for tax purposes. Petitioner argues that allowing it to reallocate the purchase price in conformity with economic reality would not violate the purposes of the Danielson rule, because there is no possibility of the Commissioner’s being whipsawed, and therefore the Daniel-son rule should not.be applied to this case. Petitioner contends that Beaunit and its subsidiaries would have reported a loss of $1,123,665.34 on its 1978 consolidated income tax return regardless of how the price was allocated. Petitioner contends that any increase in the capital gain reported by Beaunit as a separate corporation due to the increased sale price of the fixed assets would be exactly offset by the decrease in taxable income reported by Carter County Fibers as a separate corporation due to the decreased sale price of the inventory. Petitioner argues that because Beaunit would not have paid any taxes in 1978 regardless of how the purchase price was allocated, Beaunit and petitioner do not have adverse tax interests, and therefore the Commissioner could not be whipsawed. Petitioner’s argument misconstrues the importance of the whipsaw danger to the application of the Danielson rule. The Danielson rule does protect the Commissioner from the" }, { "docid": "18614776", "title": "", "text": "judgment as a matter of law. Fed.R.Civ.P. 56(c); Armco, Inc. v. Cyclops Corp., 791 F.2d 147, 149, 229 U.S.P.Q. 721, 722 (Fed.Cir.1986). Here, the case arises from the disparity between the going market price of Lane shares and what Lane paid Mico and Hat-leigh for their shares—$5.00 and $5.50 per share above market, respectively. Lane argues that “a portion of the aggregate price paid over the fair market value of the shares represented consideration paid for (1) the standstill agreement, (2) the agreements to terminate litigation, and (3) the releases from liability.” Lane does not claim that that is what the agreement says—instead, Lane argues that that is what the parties meant. Since Lane sees a genuine factual issue as to the allocative intent of the parties, it argues that summary judgment for the Government was improvidently granted. Only factual issues of legal relevance preclude summary judgment. Here, the Court of Federal Claims believed that the parties’ allocative intent was legally irrelevant because the Danielson rule required that tax consequences flow from the agreement as written, not from later allegations of what was intended by the contracting parties. Thus, in order to determine whether summary judgment was properly granted, we must determine whether the Court of Federal Claims correctly invoked the Daniel-son rule. A. The Danielson rule takes its name from Commissioner v. Danielson, 378 F.2d 771 (3d Cir.) (en banc), cert. denied 389 U.S. 858, 88 S.Ct. 94, 19 L.Ed.2d 123 (1967). At issue were the shareholders’ tax consequences when their loan company was bought out by another. The sales agreement included a covenant not to compete, toward which $152 per share of the $374 per share sale price was allocated. Id. at 773. The tax dispute arose when the taxpayer reported the entire sale price of $374 per share as proceeds from the sale of capital assets, to be taxed at capital gains rates. The Commissioner instead ruled that the $152 per share allocated to the noncompetition covenant was to be taxed as ordinary income. The Tax Court ruled in favor of the taxpayers, reasoning that the taxpayers" }, { "docid": "7072940", "title": "", "text": "arguing that the terms did not represent economic reality, the Commissioner would be required to litigate the underlying factual circumstances of “countless” agreements. Furthermore, the Commissioner might be required to litigate against both parties to the agreement in order to protect tax revenues. Schatten, 746 F.2d at 322; Danielson, 378 F.2d at 775. If both parties succeeded in their claims, the' Commissioner would lose out on revenue that logically should have come from one of the parties. Sullivan v. United States, 618 F.2d 1001, 1004 (3d Cir.1980). In those situations, the Commissioner is commonly referred to as being “whipsawed.” By' allowing the Commissioner to hold taxpayers to the terms of their agreements, the Danielson rule prevents this “whipsaw” problem. Spector v. Commissioner, 641 F.2d 376, 385 (5th Cir. Unit A. Apr.), cert. denied, 454 U.S. 868, 102 S.Ct. 334, 70 L.Ed.2d 171 (1981). Not only does the Danielson rule provide certainty to the Commissioner, it also provides a higher level of certainty to the taxpayers by maintaining “the reasonably predictable tax consequences” of agreements. Danielson, 378 F.2d at 775. If the other party cannot rely on the agreement to predict tax consequences, then the making of such agreements will be hindered. Schatten, 746 F.2d at 322. “By fostering an increased predictability that the parties’ contractual allocation will control the tax consequences that will attend such agreements, the Daniel-son rule encourages parties to take such considerations into account when forming their bargain.” Sullivan, 618 F.2d at 1004-05. Of course, the taxpayers cannot rely merely on the form of their transaction to predict the tax consequences. The Commissioner is not bound by the form and can look through the form of a taxpayer’s transaction to its substance in determining the proper effect for taxation. E.g., Commissioner v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 708, 89 L.Ed. 981 (1945). The Danielson rule-does, however, increase the predictability of tax results by preventing one party to an agreement from unilaterally reforming the agreement for tax purposes. Petitioner argues that allowing it to reallocate the purchase price in conformity with economic reality" }, { "docid": "18614775", "title": "", "text": "The Court of Federal Claims considered and rejected Lane’s argument that the agreements were lump-sum agreements for which Lane could introduce evidence of allo-cative intent: The agreements, however, do specifically allocate the aggregate amounts paid to the purchasers to the shares of stock redeemed. Plaintiffs could hardly have done a better job allocating the entire purchase price to the stock in the Hatleigh and Mico agreements.... Under Danielson, plaintiffs cannot disavow the allocation of the entire purchase price [to] the stock redeemed in the agreement with Hatleigh. Id. at 6 (emphasis added) (alteration in original). The Court of Federal Claims concluded that summary judgment was appropriate, and entered judgment in favor of the Government. Lane appeals that judgment. DISCUSSION Upon review of a grant of summary judgment, all evidence is to be viewed in a light most favorable to the nonmoving party, and all reasonable inferences must be drawn in favor of the nonmoving party. Summary judgment is properly granted when no material facts are in dispute and the prevailing party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Armco, Inc. v. Cyclops Corp., 791 F.2d 147, 149, 229 U.S.P.Q. 721, 722 (Fed.Cir.1986). Here, the case arises from the disparity between the going market price of Lane shares and what Lane paid Mico and Hat-leigh for their shares—$5.00 and $5.50 per share above market, respectively. Lane argues that “a portion of the aggregate price paid over the fair market value of the shares represented consideration paid for (1) the standstill agreement, (2) the agreements to terminate litigation, and (3) the releases from liability.” Lane does not claim that that is what the agreement says—instead, Lane argues that that is what the parties meant. Since Lane sees a genuine factual issue as to the allocative intent of the parties, it argues that summary judgment for the Government was improvidently granted. Only factual issues of legal relevance preclude summary judgment. Here, the Court of Federal Claims believed that the parties’ allocative intent was legally irrelevant because the Danielson rule required that tax consequences flow from the agreement as" }, { "docid": "18614779", "title": "", "text": "Lane agreements, the SVC repurchase agreement also provided for cessation of disruptive litigation and for a standstill covenant. Id. at 1323. Like Lane, SVC later sought to deduct or amortize the repurchase premiums. The Stokely court was required to consider the reach of Danielson because it found that the SVC repurchase agreement contained an express allocation of monetary consideration. Id. at 1326. Since the court considered the standstill covenant to be analogous to the noncompetition covenants in Proulx and Danielson, it applied the Danielson rule to preclude SVC’s attempt to reallocate a portion of the consideration to the standstill covenant. Id. at 1325-26. In light of Stokely, it is clear that the Danielson rule is the governing rule in the Federal Circuit and may properly be applied to stock repurchase agreements which contain express allocations of monetary consideration between stock and non-stock items. Whether it was properly applied in this case, then, depends on whether the Hatleigh and Mico agreements contained such an express allocation. B. Lane argues here, as it did before the Court of Federal Claims, that the Hatleigh and Mico agreements are merely lump-sum agreements expressed in the convenient shorthand of dollars per share. Lane explains that since the agreement is silent as to the amount of monetary consideration allocated to the non-stock items, an inquiry into the allocative intent of the parties is required. The Government in turn argues that all the money was expressly allocated to purchase of the stock, so by implication zero was allocated to the non-stock items. The Court of Federal Claims interpreted the contract to contain an express allocation of all the money to the stock, and none to the non-stock items. We agree. As explained above, both the Mico and the Hatleigh contracts contain a separate clause regarding sale of the stock. All financial consideration is allocated in that clause, in exchange for the stock. As a simple matter of mathematics, that means that no money is left over to allocate toward the non-stock items. This reading is consistent with the interpretation given to the agreement during Lane’s short-swing profit" }, { "docid": "7072946", "title": "", "text": "contract is ambiguous. Of course, whether the parties bargained for the allocation is not irrelevant to the operation of the Danielson rule. Under the Danielson rule, the taxpayer can seek to prove that the contract would be unenforceable between the parties. Evidence concerning lack of assent would therefore be relevant. However, simply pointing out that there were no negotiations over the particular price allocations does not show a lack of assent. The Danielson court recognized that “the effectiveness taxwise of an agreement is not measured by the amount of preliminary discussion had respecting it. It is enough if parties understand the contract and understandingly enter into it.” Danielson, 378 F.2d at 778 (quoting Hamlin’s Trust v. Commissioner, 209 F.2d 761, 765 (10th Cir.1954)). Therefore, if a taxpayer has entered an asset sales contract that unambiguously allocates the purchase price among the subject assets, then the taxpayer can challenge the tax consequences properly flowing from those allocations only by showing that the term would be unenforceable between the parties. Because the allocation of purchase price in the asset sale agreement in this ease is unambiguous, the Commissioner can bind petitioner to this allocation unless petitioner can show that the terms of the contract are unenforceable due to mistake, undue influence, fraud, duress, etc. We feel that the Danielson rule provides an effective standard for determining the tax consequences of taxpayers’ unambiguous sales contracts. The bright-line rule provides certainty to the Commissioner and better enables taxpayers to predict, and plan for, the tax consequences of their contracts. B. Petitioner argues that because the same individuals were controlling stockholders and directors of both Beaunit and petitioner, and two of these stockholder-directors, Wilson and Timko, designed the entire transaction, petitioner was prevented from bargaining at arms-length, and therefore the price allocations were the result of undue influence. The tax court found that “the record [was] devoid of any evidence of ... undue influence.” J.A. 34. The tax court’s finding that Beaunit did not exercise undue influence over petitioner was a finding of fact and, therefore, will not be reversed unless clearly erroneous. See Carlen" }, { "docid": "18614778", "title": "", "text": "had proven that the covenants were not bargained for and that the entire consideration was in reality for the stock. Id. at 774. The Third Circuit reversed the Tax Court, and in so doing created the Danielson rule: [A] party can challenge the tax consequences of his agreement ... only by adducing proof which in an action between the parties to the agreement would be admissible to alter that construction or to show its unenforceability because of mistake, undue influence, fraud, duress, etc. Id. at 775. The rule was expressly adopted by our predecessor Court of Claims. Proulx v. United States, 219 Ct.Cl. 363, 594 F.2d 832, 839 (1979); Dakan v. United States, 203 Ct.Cl. 655, 492 F.2d 1192, 1199 (1974). The Danielson rule recently was applied in assessing the tax consequences of a stock repurchase agreement which averted a hostile corporate takeover—the factual scenario before us here. In Stokely-Van Camp Inc. v. United States, 974 F.2d 1319 (Fed.Cir.1992), Stokely-Van Camp (SVC) paid a premium to repurchase stock from a disruptive shareholder. As in the Lane agreements, the SVC repurchase agreement also provided for cessation of disruptive litigation and for a standstill covenant. Id. at 1323. Like Lane, SVC later sought to deduct or amortize the repurchase premiums. The Stokely court was required to consider the reach of Danielson because it found that the SVC repurchase agreement contained an express allocation of monetary consideration. Id. at 1326. Since the court considered the standstill covenant to be analogous to the noncompetition covenants in Proulx and Danielson, it applied the Danielson rule to preclude SVC’s attempt to reallocate a portion of the consideration to the standstill covenant. Id. at 1325-26. In light of Stokely, it is clear that the Danielson rule is the governing rule in the Federal Circuit and may properly be applied to stock repurchase agreements which contain express allocations of monetary consideration between stock and non-stock items. Whether it was properly applied in this case, then, depends on whether the Hatleigh and Mico agreements contained such an express allocation. B. Lane argues here, as it did before the Court" }, { "docid": "18614774", "title": "", "text": "the “absence of a specific allocation for the non-stock items, the ‘intent’ of the contracting parties is irrelevant.” Id. at 4-5. The court followed the so-called Danielson rule, discussed infra, which essentially requires that the tax effects of an agreement flow strictly from the agreement as written. Id. at 5. Lane attempted to avoid the Danielson rule by arguing that it barred repudiation of clear allocations, but was inapplicable in the case of “lump-sum” purchase agreements with no clear allocation of monetary consideration. Assessment of the tax effects of such lump-sum agreements would require an inquiry into the allocative intent of the parties. See KFOX, Inc. v. United States, 206 Ct.Cl. 143, 510 F.2d 1365, 1370 (1975). Lane argued that its agreements with Hatleigh and Mico were such lump-sum agreements, the per share price in section 1 of each agreement being only a “convenient shorthand description of the aggregate bargained-for consideration.” Lane further argued that the agreements did not contain a more accurate allocation of the consideration “because time did not permit such fine detail.” The Court of Federal Claims considered and rejected Lane’s argument that the agreements were lump-sum agreements for which Lane could introduce evidence of allo-cative intent: The agreements, however, do specifically allocate the aggregate amounts paid to the purchasers to the shares of stock redeemed. Plaintiffs could hardly have done a better job allocating the entire purchase price to the stock in the Hatleigh and Mico agreements.... Under Danielson, plaintiffs cannot disavow the allocation of the entire purchase price [to] the stock redeemed in the agreement with Hatleigh. Id. at 6 (emphasis added) (alteration in original). The Court of Federal Claims concluded that summary judgment was appropriate, and entered judgment in favor of the Government. Lane appeals that judgment. DISCUSSION Upon review of a grant of summary judgment, all evidence is to be viewed in a light most favorable to the nonmoving party, and all reasonable inferences must be drawn in favor of the nonmoving party. Summary judgment is properly granted when no material facts are in dispute and the prevailing party is entitled to a" }, { "docid": "21306418", "title": "", "text": "desired the covenant and the amount of the allocation thereto, and the seller never objected, as was true here, it has been held that there was little reason to negotiate and therefore the lack of negotiations was not critical. See Rudie v. Commissioner, 49 T.C. 131 (1967) and Levinson v. Commissioner, 45 T.C. 380 (1966). Such discussions of the covenant as occurred here were solely between Miller, Rose, and their attorney, Westman. And even those discussions do not appear to have concerned the merits or substance of the covenant but centered instead on Westman’s advice that it had substan tial tax advantages to the buyer of commercial property. In contrast, neither the Proulxs, nor their attorney, had the slightest concept of the covenant’s tax impact. Not that this fact in any way governs the outcome of this case, for as the Fifth Circuit Court of Appeals observed in Balthrope, supra: No one has to arrange his business affairs to satisfy the tax collector’s appetite for revenues. But when a taxpayer has failed to arrange his affairs so as to minimize his taxes, he cannot expect the court to do it for him nunc pro tunc. 356 F. 2d 34. See, also, Hamlin’s Trust v. Commissioner, 209 F. 2d 761 (10th Cir. 1954) where the court observed at 209 F. 2d 765: It is reasonably clear that the sellers failed to give consideration to the tax consequences of the provision [a covenant not to compete], but where parties enter into an agreement with a clear understanding of its substance and content, they cannot be heard to say later that they overlooked possible tax consequences. Even though appealing, the difficulty with plaintiffs’ argument is at once apparent. While for reasons previously discussed, there is considerable merit in their contention that under the Schulz doctrine and its economic reality test the covenant here should be disregarded, they are in effect asking this trial judge to ignore the Danielson rule as plainly set forth in the court’s order of October 15, 1976. Of course, that invitation must be declined. If the wisdom of the" }, { "docid": "6583446", "title": "", "text": "burdens.” Id. at 1576 (citing Danielson, 378 F.2d at 775). The Federal Circuit agreed with defendant that Lane Bryant’s agreements explicitly allocated all financial consideration to the stock, and, therefore, ipso facto, allocated no sums to the nonstock items. Id. at 1575. In light of this explicit allocation of funds, the underlying intent of the parties is irrelevant and the agreement controls. Id. at 1574, 1575 n. 10. Accordingly, in reaffirming the Danielson rule, the Federal Circuit stated that “the Danielson rule requires that we take the allocation made by the parties at face value for tax purposes, regardless of what we might think of the ‘economic realities’ which drove the deal.” Id. at 1576. Regardless of what this court thinks of the Danielson rule, we are nonetheless clearly bound by it as adopted by the Court of Claims and the Federal Circuit. Here defendant argues that IP and SWF explicitly allocated the purchase price of the stock between the $13,000,000 price for the stock and 10.5% per annum for interest and, thus, urges this court to apply the Danielson rule of “form over substance.” Defendant misapplies Danielson to the present case, however. In Danielson, the parties explicitly allocated consideration between the price for the business, at $222 per share, and the covenant not to compete, at $152 per share, on the face of the contract. 378 F.2d at 773. In evaluating the Commissioner’s assessment of the federal income tax deficiency against Danielson, the court stated that the Commissioner was not “attacking the transaction in the form selected by the parties,” but instead was requiring the parties to adhere to the form of their agreement. Id. at 774. If he were attacking the form of the parties’ transaction, the court acknowledged that it would then be “required to examine the ‘substance’ and not merely the ‘form’ of the transaction.” Id. In any event, as explicated below, whether the Commissioner is requiring IP to adhere to its agreement pursuant to the Danielson “form over substance” analysis or whether the Commissioner is attacking the form of the payment selected by the parties" }, { "docid": "18614771", "title": "", "text": "contained an additional non-stock item — a “standstill provision” by which Hatleigh agreed not to purchase Lane stock for the following five years. Again, the agreement did not allocate a specific portion of the monetary payment to the standstill provision. Subsequent to the completion of the stock repurchase deals, Lane sued to recover Hat-leigh’s short-swing profits under section 16(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78p(b) (1988). (The parties specifically excepted such an action from the otherwise broad litigation waiver.) In brief, this statutory provision provides that an issuer of stock may sue to recover any profits realized from the sale of that stock within six months of its purchase, if the sale was by an individual owning more than 10% of the stock. In the course of the short- swing profit litigation, the parties stipulated that Lane had paid Hatleigh $23.00 per share (and paid Mico $22.50 per share) for the stock. The District Court entered a $649,-687.50 judgment in favor of Lane, based upon its understanding that the shares had been sold for $23.00 per share. Lane Bryant Inc. v. Hatleigh Corp., 517 F.Supp. 1196, 1198 (S.D.N.Y.1981). The tax consequences of these events came into focus when Lane filed its tax return for its taxable year ending January 30, 1982. Lane took a $5,299,730 deduction in that return, claiming that the $5.00 per share premium paid to Mico and the $5.50 per share paid to Hatleigh were for the non-stock items rather than for the stock itself, and hence could be deducted as “ordinary and necessary business expenses.” I.R.C. § 162(a). The IRS disallowed that deduction in 1986, offset the lost deduction with various other items, and arrived at a net deficiency of $2,090,605. Lane paid that deficiency in March 1987 and filed an amended return seeking a refund in 1988, arguing that the repurchase premiums were properly deducted under I.R.C. § 162(a) or, in the alternative, were amortizable assets. I.R.C. § 167(a). The IRS was unmoved by either theory. Lane filed suit in the Court of Federal Claims, arguing that the IRS" }, { "docid": "18614784", "title": "", "text": "an amended return and claim for refund on behalf of Lane in 1988. . Unless otherwise noted, all section references are to the Internal Revenue Code of 1954, as amended and in effect during 1981, the tax year at issue. .Lane asserts that the two shareholders were acting in concert. . The Lane Board of Directors explicitly authorized negotiation of a standstill agreement with Hatleigh, but not with Mico. Lane alleges that this is because the Board did not think an agreement with Mico was necessary “because, based on Mico's passive role as an investor and because of its implicit partnership with Hatleigh ... by obtaining the Hatleigh standstill, it effectively obtained the same from Mico.” . The chairman of Hatleigh represented both shareholders in the negotiations. . Lane alleges that the $0.50 per share in excess of the Mico price was intended to \"reimburse partially Hatleigh for its potential liability for short swing profits under Section 16(b) of the Securities and Exchange Act of 1934.” . Since Mico had not purchased Lane stock within the six months preceding the sale, Mico had no liability under section 16(b) of the 1934 Act. . Commissioner v. Danielson, 378 F.2d 771 (3d Cir.) (en banc), cert. denied, 389 U.S. 858, 88 S.Ct. 94, 19 L.Ed.2d 123 (1967). . Precedent from the Court of Claims is binding upon this court. South Corp. v. United States, 690 F.2d 1368, 1370, 215 U.S.P.Q. 657, 658 (Fed.Cir.1982). . Lane makes much of a final paragraph of the Stokely opinion which rejects SVC’s “other arguments” and cites a case from another circuit which accepted evidence of the parties' mutual intent. Markham & Brown, Inc. v. United States, 648 F.2d 1043 (5th Cir.1981). Lane reads this passing reference as an adoption of that circuit's \"mutual intent” rule. To the contrary, we read this as merely a rejection of SVC's attempt to avoid the clearcut result of the Danielson rule." }, { "docid": "6583445", "title": "", "text": "and future litigation, payment of transfer taxes, warranties of authorization and title, ... waiver of dividend rights” and an agreement by the seller not to purchase plaintiff’s stock for five years, the agreement did not explicitly allocate any portion of the monetary payment to these provisions. Id. at 1572. Nonetheless, Lane Bryant asserted that the parties intended to compensate for these items through payment of the purchase price premium above the fair market value of the stock. Id. at 1574. Accordingly, Lane Bryant contended that it was permitted to deduct the premium paid for the shares as ordinary and necessary business expenses pursuant to § 162(a) of the I.R.C. Id. at 1573. In rejecting Lane Bryant’s claim and affirming the Court of Federal Claims’ summary judgment for defendant, the Federal Circuit held that the Danielson rule governs instances where an agreement explicitly allocates monetary consideration between stock and nonstock items. Id. at 1575. When parties have explicitly made such an allocation, the court reasoned, they have “presumably reflected] their allocation of anticipated tax benefits and burdens.” Id. at 1576 (citing Danielson, 378 F.2d at 775). The Federal Circuit agreed with defendant that Lane Bryant’s agreements explicitly allocated all financial consideration to the stock, and, therefore, ipso facto, allocated no sums to the nonstock items. Id. at 1575. In light of this explicit allocation of funds, the underlying intent of the parties is irrelevant and the agreement controls. Id. at 1574, 1575 n. 10. Accordingly, in reaffirming the Danielson rule, the Federal Circuit stated that “the Danielson rule requires that we take the allocation made by the parties at face value for tax purposes, regardless of what we might think of the ‘economic realities’ which drove the deal.” Id. at 1576. Regardless of what this court thinks of the Danielson rule, we are nonetheless clearly bound by it as adopted by the Court of Claims and the Federal Circuit. Here defendant argues that IP and SWF explicitly allocated the purchase price of the stock between the $13,000,000 price for the stock and 10.5% per annum for interest and, thus, urges this" }, { "docid": "18614781", "title": "", "text": "suit against Hatleigh. Our conclusion that the Hatleigh and Mico agreements mean exactly what they say is further bolstered by the similarities of those agreements and the sales agreement at issue in Stokely. Like the Lane agreements, SVC’s agreement with its dissident shareholder did not expressly indicate that no money was allocated to the non-stock items. Nevertheless, the Stokely court found that to be the obvious implication: Here, the Agreement states in Section 1 relating to “Purchase and Sale of the Purchase Shares” that the entire amount paid to GDV is “in full payment for the Purchase Shares.” Other provisions of the Agreement included the settlement of actions between the parties and the [standstill] covenant.... These are covered in Sections 2 and 5, respectively, but neither section sets forth any separate consideration for these provisions. Thus, no part of the amount to be paid was allocated expressly to the “standstill” covenant in the Agreement. Id. at 1326 (emphasis added). This passage, and in particular the highlighted phrase, demonstrates that Stokely is factually indistinguishable from the situation before us. Lane’s agreements with Hatleigh and Mico expressly allocate nothing to the non-stock provisions. C. Lane argues that interpreting the Hatleigh and Mico agreements as allocating nothing to the non-stock items is “illogical” and flies in the face of “economic sense.” Lane alleges that the agreements arose because it sought certain non-stock items, repurchase of the outstanding stock being merely a vehicle to that end. Lane thus concludes that the repurchase premium could only be allocated to the non-stock items. But Lane does not offer any explanation (beyond passing reference to the brevity of negotiations) as to why the contracts were not drafted to reflect the “economic reality” which Lane finds so obvious now. Certainly it was not due to lack of legal counsel or business sophistication. Although acquisition of non-stock items might have been a necessary condition for the deal, subsequent allocation of the monetary consideration is a different matter. When stock and non-stock items are eligible for differential tax treatment, the parties’ allocation presumably reflects their allocation of anticipated tax benefits" }, { "docid": "18614777", "title": "", "text": "written, not from later allegations of what was intended by the contracting parties. Thus, in order to determine whether summary judgment was properly granted, we must determine whether the Court of Federal Claims correctly invoked the Daniel-son rule. A. The Danielson rule takes its name from Commissioner v. Danielson, 378 F.2d 771 (3d Cir.) (en banc), cert. denied 389 U.S. 858, 88 S.Ct. 94, 19 L.Ed.2d 123 (1967). At issue were the shareholders’ tax consequences when their loan company was bought out by another. The sales agreement included a covenant not to compete, toward which $152 per share of the $374 per share sale price was allocated. Id. at 773. The tax dispute arose when the taxpayer reported the entire sale price of $374 per share as proceeds from the sale of capital assets, to be taxed at capital gains rates. The Commissioner instead ruled that the $152 per share allocated to the noncompetition covenant was to be taxed as ordinary income. The Tax Court ruled in favor of the taxpayers, reasoning that the taxpayers had proven that the covenants were not bargained for and that the entire consideration was in reality for the stock. Id. at 774. The Third Circuit reversed the Tax Court, and in so doing created the Danielson rule: [A] party can challenge the tax consequences of his agreement ... only by adducing proof which in an action between the parties to the agreement would be admissible to alter that construction or to show its unenforceability because of mistake, undue influence, fraud, duress, etc. Id. at 775. The rule was expressly adopted by our predecessor Court of Claims. Proulx v. United States, 219 Ct.Cl. 363, 594 F.2d 832, 839 (1979); Dakan v. United States, 203 Ct.Cl. 655, 492 F.2d 1192, 1199 (1974). The Danielson rule recently was applied in assessing the tax consequences of a stock repurchase agreement which averted a hostile corporate takeover—the factual scenario before us here. In Stokely-Van Camp Inc. v. United States, 974 F.2d 1319 (Fed.Cir.1992), Stokely-Van Camp (SVC) paid a premium to repurchase stock from a disruptive shareholder. As in the" }, { "docid": "18614782", "title": "", "text": "situation before us. Lane’s agreements with Hatleigh and Mico expressly allocate nothing to the non-stock provisions. C. Lane argues that interpreting the Hatleigh and Mico agreements as allocating nothing to the non-stock items is “illogical” and flies in the face of “economic sense.” Lane alleges that the agreements arose because it sought certain non-stock items, repurchase of the outstanding stock being merely a vehicle to that end. Lane thus concludes that the repurchase premium could only be allocated to the non-stock items. But Lane does not offer any explanation (beyond passing reference to the brevity of negotiations) as to why the contracts were not drafted to reflect the “economic reality” which Lane finds so obvious now. Certainly it was not due to lack of legal counsel or business sophistication. Although acquisition of non-stock items might have been a necessary condition for the deal, subsequent allocation of the monetary consideration is a different matter. When stock and non-stock items are eligible for differential tax treatment, the parties’ allocation presumably reflects their allocation of anticipated tax benefits and burdens. Danielson, 378 F.2d at 775. Giving strict credence to that presumption aids the tax collector in avoiding the whipsaw of later inconsistent positions by those parties. Id. That one of the parties later sees tax benefits to be reaped from some other allocation is irrelevant. Proulx, 594 F.2d at 840 (quoting Hamlin’s Trust v. Commissioner, 209 F.2d 761, 765 (10th Cir.1954)). In sum, the Danielson rule requires that we take the allocation made by the parties at face value for tax purposes, regardless of what we might think of the “economic realities” which drove the deal. Compare Schulz v. Commissioner, 294 F.2d 52, 55 (9th Cir.1961). CONCLUSION Lane has not shown that the Court of Federal Claims erred in applying the Daniel-son rule to the situation before us. There were no genuine factual issues in dispute, and the Court of Federal Claims properly granted summary judgment for the Government. AFFIRMED. . The Limited acquired Lane in May 1982, after the end of the tax year at issue in this case. The Limited filed" }, { "docid": "18614772", "title": "", "text": "shares had been sold for $23.00 per share. Lane Bryant Inc. v. Hatleigh Corp., 517 F.Supp. 1196, 1198 (S.D.N.Y.1981). The tax consequences of these events came into focus when Lane filed its tax return for its taxable year ending January 30, 1982. Lane took a $5,299,730 deduction in that return, claiming that the $5.00 per share premium paid to Mico and the $5.50 per share paid to Hatleigh were for the non-stock items rather than for the stock itself, and hence could be deducted as “ordinary and necessary business expenses.” I.R.C. § 162(a). The IRS disallowed that deduction in 1986, offset the lost deduction with various other items, and arrived at a net deficiency of $2,090,605. Lane paid that deficiency in March 1987 and filed an amended return seeking a refund in 1988, arguing that the repurchase premiums were properly deducted under I.R.C. § 162(a) or, in the alternative, were amortizable assets. I.R.C. § 167(a). The IRS was unmoved by either theory. Lane filed suit in the Court of Federal Claims, arguing that the IRS had incorrectly denied Lane’s deductions and that it therefore was entitled to a refund. On September 24, 1991, the Court of Federal Claims heard oral argument on the government’s motions for summary judgment and for sanctions under Rule 11. At close of oral argument, the Court of Federal Claims denied the motion for sanctions and by written order granted the motion for summary judgment. The Court of Federal Claims summarized the facts described above, set forth the relevant provisions of the Hatleigh and Mico agreements, and concluded: Neither the Hatleigh agreement nor the Mico agreement made any allocation of the aggregate amount paid to Lane Bryant as to any of the non-stock items plaintiffs identify as the basis for a premium. There is no allocation for an amount paid for the “standstill” agreement. Ct.Fed.Cl.Op. at 3. Since no consideration had been allocated to the non-stock items, there was nothing for Lane to deduct or amortize. The court acknowledged Lane’s argument that the premium was intended as payment for the non-stock items, but concluded that in" } ]

[ { "docid": "22683859", "title": "", "text": "has vacated 8 of the 21 death sentences that it has reviewed to date. See Taylor v. State, 294 So. 2d 648 (1974); Lamadline v. State, 303 So. 2d 17 (1974); Slater v. State, 316 So. 2d 539 (1975); Swan v. State, 322 So. 2d 485 (1975); Tedder v. State, 322 So. 2d 908 (1975); Halliwell v. State, 323 So. 2d 557 (1975); Thompson v. State, 328 So. 2d 1 (1976); Messer v. State, 330 So. 2d 137 (1976). Under Florida's capital-sentencing procedures, in sum, trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life. Moreover, their decisions are reviewed to ensure that they are consistent with other sentences imposed in similar circumstances. Thus, in Florida, as in Georgia, it is no longer true that there is “ 'no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.’ ” Gregg v. Georgia, ante, at 188, quoting Furman v. Georgia, 408 U. S., at 313 (White, J., concurring). On its face the Florida system thus satisfies the constitutional deficiencies identified in Furman. B As in Gregg, the petitioner contends, however, that, while perhaps facially acceptable, the new sentencing procedures in actual effect are merely cosmetic, and that arbitrariness and caprice still pervade the system under which Florida imposes the death penalty. (1) The petitioner first argues that arbitrariness is inherent in the Florida criminal justice system because it allows discretion to be exercised at each stage of a criminal proceeding — the prosecutor’s decision whether to charge a capital offense in the first place, his decision whether to accept a plea to a lesser offense, the jury’s consideration of lesser included offenses, and, after conviction and unsuccessful appeal, the Executive’s decision whether to commute a death sentence. As we noted in Gregg, this argument is based on a fundamental misinterpretation of Furman, and we reject it for the reasons expressed in Gregg. See ante, at 199. (2) The petitioner next argues that the new" } ]

[ { "docid": "22230944", "title": "", "text": "(1984). The Constitution prohibits the arbitrary or irrational imposition of the death penalty. Id., at 466-467. We have emphasized repeatedly the crucial role of meaningful appellate review in ensuring that the death penalty is not imposed arbitrarily or irrationally. See, e. g., Clemons, supra, at 749 (citing cases); Gregg v. Georgia, 428 U. S. 153 (1976). We have held specifically that the Florida Supreme Court’s system of independent review of death sentences minimizes the risk of constitutional error, and have noted the “crucial protection” afforded by such review in jury override cases. Dobbert v. Florida, 432 U. S. 282, 295 (1977). See also Proffitt v. Florida, 428 U. S. 242, 253 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Spaziano, supra, at 465. The Florida Supreme Court did not conduct an independent review here. In fact, there is a sense in which the court did not review Parker’s sentence at all. It cannot be gainsaid that meaningful appellate review requires that the appellate court consider the defendant’s actual record. “What is important... is an individualized determination on the basis of the character of the individual and the circumstances of the crime.” Zant v. Stephens, 462 U. S. 862, 879 (1983). See also Clemons, supra, at 749, 752; Barclay v. Florida, 463 U. S. 939, 958 (1983) (plurality opinion). The Florida Supreme Court affirmed Parker’s death sentence neither based on a review of the individual record in this case nor in reliance on the trial judge’s findings based on that record, but in reliance on some other nonexistent findings. The jury found sufficient mitigating circumstances to outweigh the aggravating circumstances and recommended that Parker be sentenced to life imprisonment for the Sheppard murder. The trial judge found nonstatutory mitigating circumstances related to the Sheppard murder. The judge also declined to override the jury’s recommendation as to the Padgett murder, even though he found five statutory aggravating circumstances and no statutory mitigating circumstances related to that crime. The Florida Supreme Court then struck two of the aggravating circumstances on which the trial judge had relied. On these facts, the Florida Supreme" }, { "docid": "22393719", "title": "", "text": "free rein. The community’s voice is heard at least as clearly in the legislature when the death penalty is authorized and the particular circumstances in which death is appropriate are defined. See Gregg v. Georgia, 428 U. S., at 183-184 (joint opinion); Furman v. Georgia, 408 U. S., at 394-395 (Burger, C. J., dissenting); id., at 452-454 (Powell, J., dissenting). We do not denigrate the significance of the jury’s role as a link between the community and the penal system and as a bulwark between the accused and the State. See Gregg v. Georgia, 428 U. S., at 181 (joint opinion); Williams v. Florida, 399 U. S. 78, 100 (1970); Duncan v. Louisiana, 391 U. S., at 156; Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968). The point is simply that the purpose of the death penalty is not frustrated by, or inconsistent with, a scheme in which the imposition of the penalty in individual cases is determined by a judge. We also acknowledge the presence of the majority view that capital sentencing, unlike other sentencing, should be performed by a jury. As petitioner points out, 30 out of 37 jurisdictions with a capital sentencing statute give the life- or-death decision to the jury, with only 3 of the remaining 7 allowing a judge to override a jury’s recommendation of life. The fact that a majority of jurisdictions have adopted a different practice, however, does not establish that contemporary standards of decency are offended by the jury override. The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws. “Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment” is violated by a challenged practice. See Enmund v. Florida, 458 U. S. 782, 797 (1982); Coker v. Georgia, 433 U. S. 584, 597 (1977) (plurality opinion). In light of the facts that the Sixth Amendment does not require jury sentencing, that the demands of fairness and" }, { "docid": "22393714", "title": "", "text": "rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937), and Williams v. New York, 337 U. S. 241, 247-249 (1949). The Sixth Amendment never has been thought to guarantee a right to a jury determination of that issue. Nor does petitioner urge that this Court’s recognition of the “qualitative difference” of the death penalty requires the benefit of a jury. In Furman v. Georgia, 408 U. S., at 238, the Court struck down the then-existing capital sentencing statutes of Georgia and Texas, in large part because of its conclusion that, under those statutes, the penalty was applied arbitrarily and discriminatorily. See also Gregg v. Georgia, 428 U. S. 153, 188 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). Since then, the Court has emphasized its pursuit of the “twin objectives” of “measured, consistent application and fairness to the accused.” Eddings v. Oklahoma, 455 U. S. 104, 110-111 (1982). 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. Zant v. Stephens, 462 U. S. 862, 873-880 (1983); Furman v. Georgia, 408 U. S., at 294 (Brennan, J., concurring). It must also allow the sentencer to consider the individual circumstances of the defendant, his background, and his crime. Lockett v. Ohio, supra. Nothing in those twin objectives suggests that the sentence must or should be imposed by a jury. While it is to be hoped that current procedures have greatly reduced the risk that jury sentencing will result in arbitrary or discriminatory application of the death penalty, see Gregg v. Georgia, 428 U. S., at 190-195 (joint opinion), there certainly is nothingin the safeguards necessitated by the Court’s recognition of the qualitative difference of the death penalty that requires that the sentence be imposed by a jury. Petitioner’s primary argument is that the laws and practice in most of the States indicate a nearly unanimous recognition that juries, not judges, are better equipped to" }, { "docid": "22640997", "title": "", "text": "evidence. 479 U. S. 882 (1986). We conclude that it does, and now reverse. i — I I — I It is well settled that a jury’s discretion to impose the death sentence must be “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U. S. 153, 189 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); California v. Ramos, 463 U. S. 992, 999 (1983). Although this Court normally will defer to a state legislature’s determination of what factors are relevant to the sentencing decision, the Constitution places some limits on this discretion. See, e. g., id., at 1000-1001. Specifically, we have said that a jury must make an “individualized determination” whether the defendant in question should be executed, based on “the character of the individual and the circumstances of the crime.” Zant v. Stephens, 462 U. S. 862, 879 (1983) (emphasis in original). See also Eddings v. Oklahoma, 455 U. S. 104, 112 (1982). And while this Court has never said that the defendant’s record, characteristics, and the circumstances of the crime are the only permissible sentencing considerations, a state statute that requires consideration of other factors must be scrutinized to ensure that the evidence has some bearing on the defendant’s “personal responsibility and moral guilt.” Enmund v. Florida, 458 U. S. 782, 801 (1982). To do otherwise would create the risk that a death sentence will be based on considerations that are “constitutionally impermissible or totally irrelevant to the sentencing process.” See Zant v. Stephens, supra, at 885. The VIS in this case provided the jury with two types of information. First, it described the personal characteristics of the victims and the emotional impact of the crimes on the family. Second, it set forth the family members’ opinions and characterizations of the crimes and the defendant. For the reasons stated below, we- find that this information is irrelevant to a capital sentencing decision, and that its admission creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner." }, { "docid": "22393717", "title": "", "text": "decision should be final. Petitioner’s argument obviously has some appeal. But it has two fundamental flaws. First, the distinctions between capital and noncapital sentences are not so clear as petitioner suggests. Petitioner acknowledges, for example, that deterrence may be a justification for capital as well as for non-capital sentences. He suggests only that deterrence is not a proper consideration for particular sentencers who are deciding whether the penalty should be imposed in a given case. The same is true, however, in noncapital cases. Whatever the sentence, its deterrent function is primarily a consideration for the legislature. Gregg v. Georgia, 428 U. S., at 186 (joint opinion). Similar points can be made about the other purposes of capital and noncapital punishment. Although incapacitation has never been embraced as a sufficient justification for the death penalty, it is a legitimate consideration in a capital sentencing proceeding. Id., at 183, n. 28; Jurek v. Texas, 428 U. S. 262 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). While retribution clearly plays a more prominent role in a capital case, retribution is an element of all punishments society imposes, and there is no suggestion as to any of these that the sentence may not be imposed by a judge. Second, even accepting petitioner’s premise that the retributive purpose behind the death penalty is the element that sets the penalty apart,'it does not follow that the sentence must be imposed by a jury. Imposing the sentence in individual cases is not the sole or even the primary vehicle through which the community’s voice can be expressed. This Court’s decisions indicate that the discretion of the sentencing authority, whether judge or jury, must be limited and reviewable. See, e. g., Gregg v. Georgia, supra; Woodson v. North Carolina, 428 U. S., at 302-303; Zant v. Stephens, 462 U. S., at 879-880. The sentencer is responsible for weighing the specific aggravating and mitigating circumstances the legislature has determined are necessary touchstones in determining whether death is the appropriate penalty. Thus, even if it is a jury that imposes the sentence, the “community’s voice” is not given" }, { "docid": "22733631", "title": "", "text": "of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.” Id., at 195. In short, the Court of Appeals erred in concluding that Gregg required proportionality review. There is even less basis for reliance on Proffitt v. Florida, swpra. The Florida statute provides for a bifurcated procedure and forecloses the death penalty unless the sentencing authority finds that at least one of eight statutory aggravating circumstances is present and is not outweighed by any mitigating circumstances. The joint opinion of Justices Stewart, Powell, and Stevens observed that the Florida scheme, like its Georgia counterpart, requires the sentencer to focus on the individual circumstances of each homicide and each defendant. 428 U. S., at 251. Also, by vesting ultimate sentencing authority in the judge rather than the jury, the statute was expected to yield more consistent sentencing at the trial court level. Id., at 252. Only after concluding that trial judges are given specific and detailed guidance to assist them in deciding whether to impose the death penalty did the opinion observe that death sentences are reviewed to ensure that they are consistent with the sentences imposed in similar cases. Id., at 250-251. The opinion concurring in the judgment filed by three other Justices approved the Florida statute without even mentioning appellate review. Id., at 260-261. That Gregg and Proffitt did not establish a constitutional requirement of proportionality review is made clearer by Jurek v. Texas, 428 U. S. 262 (1976), decided the same day. In Jurek we upheld a death sentence even though neither the statute, as in Georgia, nor state case law, as in Florida, provided for comparative proportionality review. Justices Stewart, Powell, and Stevens, after emphasizing the limits on the jury’s discretion, concluded: “Texas’ capital-sentencing procedures, like those of Georgia and Florida, do not violate the Eighth and Fourteenth Amendments. By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered. By authorizing the defense" }, { "docid": "22393715", "title": "", "text": "can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not. Zant v. Stephens, 462 U. S. 862, 873-880 (1983); Furman v. Georgia, 408 U. S., at 294 (Brennan, J., concurring). It must also allow the sentencer to consider the individual circumstances of the defendant, his background, and his crime. Lockett v. Ohio, supra. Nothing in those twin objectives suggests that the sentence must or should be imposed by a jury. While it is to be hoped that current procedures have greatly reduced the risk that jury sentencing will result in arbitrary or discriminatory application of the death penalty, see Gregg v. Georgia, 428 U. S., at 190-195 (joint opinion), there certainly is nothingin the safeguards necessitated by the Court’s recognition of the qualitative difference of the death penalty that requires that the sentence be imposed by a jury. Petitioner’s primary argument is that the laws and practice in most of the States indicate a nearly unanimous recognition that juries, not judges, are better equipped to make reliable capital sentencing decisions and that a jury’s decision for life should be inviolate. The reason for that recognition, petitioner urges, is that the nature of the decision whether a defendant should live or die sets capital sentencing apart and requires that a jury have the ultimate word. Noncapital sentences are imposed for various reasons, including rehabilitation, incapacitation, and deterrence. In contrast, the primary justification for the death penalty is retribution. As has been recognized, “the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” Id., at 184. The imposition of the death penalty, in other words, is an expression of community outrage. Since the jury serves as the voice of the community, the jury is in the best position to decide whether a particular crime is so heinous that the community’s response must be death. If the answer is no, that" }, { "docid": "22761000", "title": "", "text": "provisions are interpreted in a “parallel fashion” under Louisiana law. See State v. Williams, 480 So. 2d 721, 726-727 (La. 1985). Petitioner’s argument that the parallel nature of these provisions requires that his sentences be set aside rests on a mistaken premise as to the necessary role of aggravating circumstances. To pass constitutional muster, a capital sentencing scheme 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 (1983); cf. Gregg v. Georgia, 428 U. S. 153 (1976). Under the capital sentencing laws of most States, the jury is required during the sentencing phase to find at least one aggravating circumstance before it may impose death. Id., at 162-164 (reviewing Georgia sentencing scheme); Proffitt v. Florida, 428 U. S. 242, 247-250 (1976) (reviewing Florida sentencing scheme). By doing so, the jury narrows the class of persons eligible for the death penalty according to an objective legislative definition. Zant, supra, at 878 (“[Statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty”). In Zant v. Stephens, supra, we upheld a sentence of death imposed pursuant to the Georgia capital sentencing statute, under which “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.” Id., at 874. We found no constitutional deficiency in that scheme because the aggravating circumstances did all that the Constitution requires. The use of “aggravating circumstances” is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jury’s discretion. We see no reason why this narrowing function may not be performed by jury findings at either the sentencing phase of the trial or the guilt phase. Our opinion in Jurek" }, { "docid": "22085744", "title": "", "text": "clear, we are unwilling to say that there is any one right way for a State to set up its capital sentencing scheme.” Spaziano, supra, at 464; see also Pulley v. Harris, 465 U. S. 37 (1984); Zant v. Stephens, 462 U. S. 862 (1983); Gregg v. Georgia, 428 U. S. 153, 195 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Accordingly, when .a federal habeas court reviews a claim that the death penalty has been imposed on one who has neither killed, attempted to kill, nor intended that a killing take place or lethal force be used, the court’s inquiry cannot be limited to an examination of jury instructions. Rather, the court must examine the entire course of the state-court proceedings against the defendant in order to determine whether, at some point in the process, the requisite factual finding as to the defendant’s culpability has been made. If it has, the finding must be presumed correct by virtue of 28 U. S. C. § 2254(d), see Sumner v. Mata, 449 U. S. 539 (1981), and unless the habeas petitioner can bear the heavy burden of overcoming the presumption, the court is obliged to hold that the Eighth Amendment as interpreted in Enmund is not offended by the death sentence. > I — I The Court of Appeals thus erred m focusing exclusively on the jury and in ordering a new sentencing hearing without inquiring whether the necessary finding of intent had been made by the trial court or by the state appellate court. The State argues that the Mississippi Supreme Court itself made a finding sufficient to satisfy Enmund in the course of its direct review of Bullock’s conviction and sentence. It relies on two separate statements in the court’s opinion. First, in responding to the claim of insufficient evidence, the court said that “[t]he evidence is overwhelming that appellant was present, aiding and assisting in the assault upon, and slaying of, Dickson.” 391 So. 2d, at 606. Second, in determining that the death penalty was not disproportionate to the sentences imposed in other cases, the court stated that" }, { "docid": "22393713", "title": "", "text": "significant to the Double Jeopardy Clause, however, does not mean that it is like a trial in respects significant to the Sixth Amendment’s guarantee of a jury trial. The Court’s concern in Bullington was with the risk that the State, with all its resources, would wear a defendant down, thereby leading to an erroneously imposed death penalty. 451 U. S., at 445. There is no similar danger involved in denying a defendant a jury trial on the sentencing issue of life or death. The sentencer, whether judge or jury, has a constitutional obligation to evaluate the unique circumstances of the individual defendant and the sentencer’s decision for life is final. Arizona v. Rumsey, supra. More important, despite its unique aspects, a capital sentencing proceeding involves the same fundamental issue involved in any other sentencing proceeding — a determination of the appropriate punishment to be imposed on an individual. See Lockett v. Ohio, 438 U. S. 586, 604-605 (1978) (plurality opinion); Woodson v. North Carolina, 428 U. S. 280, 304 (1976) (plurality opinion), citing Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937), and Williams v. New York, 337 U. S. 241, 247-249 (1949). The Sixth Amendment never has been thought to guarantee a right to a jury determination of that issue. Nor does petitioner urge that this Court’s recognition of the “qualitative difference” of the death penalty requires the benefit of a jury. In Furman v. Georgia, 408 U. S., at 238, the Court struck down the then-existing capital sentencing statutes of Georgia and Texas, in large part because of its conclusion that, under those statutes, the penalty was applied arbitrarily and discriminatorily. See also Gregg v. Georgia, 428 U. S. 153, 188 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). Since then, the Court has emphasized its pursuit of the “twin objectives” of “measured, consistent application and fairness to the accused.” Eddings v. Oklahoma, 455 U. S. 104, 110-111 (1982). 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" }, { "docid": "22393722", "title": "", "text": "capital case is so fundamentally at odds with contemporary standards of fairness and decency that Florida must be required to alter its scheme and give final authority to the jury to make the life-or-death decision. IV Our determination that there is no constitutional imperative that a jury have the responsibility of deciding whether the death penalty should be imposed also disposes of petitioner’s double jeopardy challenge to the jury-override procedure. If a judge may be vested with sole responsibility for imposing the penalty, then there is nothing constitutionally wrong with the judge’s exercising that responsibility after receiving the advice of the jury. The advice does not become a judgment simply because it comes from the jury. V Petitioner’s final challenge is to the application of the standard the Florida Supreme Court has announced for allowing a trial court to override a jury’s recommendation of life. See Tedder v. State, 322 So. 2d 908, 910 (1975). This Court already has recognized the significant safeguard the Tedder standard affords a capital defendant in Florida. See Dobbert v. Florida, 432 U. S. 282, 294-295 (1977). See also Proffitt, 428 U. S., at 249 (joint opinion). We are satisfied that the Florida Supreme Court takes that standard seriously and has not hesitated to reverse a trial court if it derogates the jury’s role. See Richardson v. State, 437 So. 2d 1091, 1095 (Fla. 1983); Miller v. State, 332 So. 2d 65 (Fla. 1976). Our responsibility, however, is not to second-guess the deference accorded the jury’s recommendation in a particular case, but to ensure that the result of the process is not arbitrary or discriminatory. We see nothing that suggests that the application of the jury-override procedure has resulted in arbitrary or discriminatory application of the death penalty, either in general or in this particular case. Regardless of the jury’s recommendation, the trial judge is required to conduct an independent review of the evidence and to make his own findings regarding aggravating and mitigating circumstances. If the judge imposes a sentence of death, he must set forth in writing the findings on which the sentence" }, { "docid": "22085743", "title": "", "text": "on sentencing, and like other such limits it need not be enforced by the jury. Indeed, Enmund does not impose any particular form of procedure upon the States. The Eighth Amendment is satisfied so long as the death penalty is not imposed upon a person ineligible under Enmund for such punishment. If a person sentenced to death in fact killed, attempted to kill, or intended to kill, the Eighth Amendment itself is not violated by his or her execution regardless of who makes the determination of the requisite culpability; by the same token, if a person sentenced to death lacks the requisite culpability, the Eighth Amendment violation can be adequately remedied by any court that has the power to find the facts and vacate the sentence. At what precise point in its criminal process a State chooses to make the Enmund determination is of little concern from the standpoint of the Constitution. The State has considerable freedom to structure its capital sentencing system as it sees fit, for “[a]s the Court has several times made clear, we are unwilling to say that there is any one right way for a State to set up its capital sentencing scheme.” Spaziano, supra, at 464; see also Pulley v. Harris, 465 U. S. 37 (1984); Zant v. Stephens, 462 U. S. 862 (1983); Gregg v. Georgia, 428 U. S. 153, 195 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Accordingly, when .a federal habeas court reviews a claim that the death penalty has been imposed on one who has neither killed, attempted to kill, nor intended that a killing take place or lethal force be used, the court’s inquiry cannot be limited to an examination of jury instructions. Rather, the court must examine the entire course of the state-court proceedings against the defendant in order to determine whether, at some point in the process, the requisite factual finding as to the defendant’s culpability has been made. If it has, the finding must be presumed correct by virtue of 28 U. S. C. § 2254(d), see Sumner v. Mata, 449 U. S. 539 (1981)," }, { "docid": "22162057", "title": "", "text": "considered by the sentencing authorities [did] not have numerical weights assigned to them.” 428 U. S., at 258. In Gregg, moreover, we “approved Georgia’s capital sentencing statute even though it clearly did not channel the jury’s discretion by enunciating specific standards to guide the jury’s consideration of aggravating and mitigating circumstances.” Zant, 462 U. S., at 875. We also rejected an objection “to the wide scope of evidence and argument” allowed at sentencing hearings. 428 U. S., at 203-204. In sum, “discretion to evaluate and weigh the circumstances relevant to the particular defendant and the crime he committed” is not impermissible in the capital sentencing process. McCleskey v. Kemp, 481 U. S. 279, 315, n. 37 (1987). “Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, . . . the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment.” Ramos, supra, at 1008. Indeed, the sentencer may be given “unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty.” Zant, supra, at 875; see also Barclay v. Florida, 463 U. S. 939, 948-951 (1983) (plurality opinion). In contravention of those cases, petitioners’ argument would force the States to adopt a kind of mandatory sentencing scheme requiring a jury to sentence a defendant to death if it found, for example, a certain kind or number of facts, or found more statutory aggravating factors than statutory mitigating factors. The States are not required to conduct the capital sentencing process in that fashion. See Gregg, supra, at 199-200, n. 50. The instructions to the juries in petitioners’ cases directing consideration of factor (a), factor (b), and factor (i) did not violate the Constitution. The judgments of the Supreme Court of California are Affirmed. Section 190.3 provides in part: “In determining the penalty, the trier of fact shall take into account any of the following factors if relevant: “(a) The circumstances of the crime of" }, { "docid": "22733671", "title": "", "text": "being administered in an arbitrary and capricious manner. Moreover, this stated concern with the irrational imposition of the death penalty did not cease with the judgments of the Furman Court; indeed, the same focus has been reflected in the Court’s decisions ever since. See, e. g., Barclay v. Florida, 463 U. S. 939, 958-960 (1983) (Stevens, J., concurring in judgment); Zant v. Stephens, 462 U. S. 862, 874 (1983) (characterizing Furman as holding that “ ‘where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action’”) (quoting Gregg v. Georgia, 428 U. S., at 189 (opinion of Stewart, Powell, and Stevens, JJ.)); Eddings v. Oklahoma, 455 U. S. 104, 111 (1982) (noting that the Court “has attempted to provide standards for a constitutional death penalty that would serve both goals of measured, consistent application and fairness to the accused”); id., at 112 (noting that the Court has “insiste[d] that capital punishment be imposed fairly, and with reasonable consistency, or not at all”). Hence, if any principle is an accepted part of the Court’s death penalty decisions during the past 12 years, it is that the irrational application of the death penalty, as evidenced by an examination of when the death penalty is actually imposed, cannot be constitutionally defended. Even while repeating this principle, however, the Court since Gregg v. Georgia, supra, and its companion cases, has allowed executions to take place, and death rows to expand, without fully examining the results obtained by the death penalty statutes enacted in response to the Furman decision. Indeed, the Court seems content to conclude that, so long as certain procedural protections exist, imposition of the death penalty is constitutionally permissible. But a sentencer’s consideration of aggravating and mitigating circumstances, see ante, at 51-53, combined with some form of meaningful appellate review, see ante, at 54-55, 59 (Stevens, J., concurring in part), does not by itself ensure that a death" }, { "docid": "22393721", "title": "", "text": "reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional. As the Court several times has made clear, we are unwilling to say that there is any one right way for a State to set up its capital sentencing scheme. See Pulley v. Harris, 465 U. S. 37 (1984); Zant v. Stephens, 462 U. S., at 884; Gregg v. Georgia, 428 U. S., at 195 (joint opinion). The Court twice has concluded that Florida has struck a reasonable balance between sensitivity to the individual and his circumstances and ensuring that the penalty is not imposed arbitrarily or discriminatorily. Barclay v. Florida, 463 U. S. 939 (1983); Proffitt v. Florida, 428 U. S. 242, 252 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). We are not persuaded that placing the responsibility on a trial judge to impose the sentence in a capital case is so fundamentally at odds with contemporary standards of fairness and decency that Florida must be required to alter its scheme and give final authority to the jury to make the life-or-death decision. IV Our determination that there is no constitutional imperative that a jury have the responsibility of deciding whether the death penalty should be imposed also disposes of petitioner’s double jeopardy challenge to the jury-override procedure. If a judge may be vested with sole responsibility for imposing the penalty, then there is nothing constitutionally wrong with the judge’s exercising that responsibility after receiving the advice of the jury. The advice does not become a judgment simply because it comes from the jury. V Petitioner’s final challenge is to the application of the standard the Florida Supreme Court has announced for allowing a trial court to override a jury’s recommendation of life. See Tedder v. State, 322 So. 2d 908, 910 (1975). This Court already has recognized the significant safeguard the Tedder standard affords a capital defendant in Florida. See Dobbert v." }, { "docid": "22393723", "title": "", "text": "Florida, 432 U. S. 282, 294-295 (1977). See also Proffitt, 428 U. S., at 249 (joint opinion). We are satisfied that the Florida Supreme Court takes that standard seriously and has not hesitated to reverse a trial court if it derogates the jury’s role. See Richardson v. State, 437 So. 2d 1091, 1095 (Fla. 1983); Miller v. State, 332 So. 2d 65 (Fla. 1976). Our responsibility, however, is not to second-guess the deference accorded the jury’s recommendation in a particular case, but to ensure that the result of the process is not arbitrary or discriminatory. We see nothing that suggests that the application of the jury-override procedure has resulted in arbitrary or discriminatory application of the death penalty, either in general or in this particular case. Regardless of the jury’s recommendation, the trial judge is required to conduct an independent review of the evidence and to make his own findings regarding aggravating and mitigating circumstances. If the judge imposes a sentence of death, he must set forth in writing the findings on which the sentence is based. Fla. Stat. §921.141(3) (1983). The Florida Supreme Court must review every capital sentence to ensure that the penalty has not been imposed arbitrarily or capriciously. §921.141(4). As Justice Stevens noted in Barclay, there is no evidence that the Florida Supreme Court has failed in its responsibility to perform meaningful appellate review of each death sentence, either in cases in which both the jury and the trial court have concluded that death is the appropriate penalty or in cases when the jury has recommended life and the trial court has overridden the jury’s recommendation and sentenced the defendant to death. See Barclay v. Florida, 463 U. S., at 971-972, and n. 23 (opinion concurring in judgment). In this case, the trial judge based his decision on the presence of two statutory aggravating circumstances. The first, that the defendant had previously been convicted of another capital felony or of a felony involving the use or threat of violence to the person, §921.141(5), was based on evidence not available to the advisory jury but, under Florida" }, { "docid": "22393718", "title": "", "text": "capital case, retribution is an element of all punishments society imposes, and there is no suggestion as to any of these that the sentence may not be imposed by a judge. Second, even accepting petitioner’s premise that the retributive purpose behind the death penalty is the element that sets the penalty apart,'it does not follow that the sentence must be imposed by a jury. Imposing the sentence in individual cases is not the sole or even the primary vehicle through which the community’s voice can be expressed. This Court’s decisions indicate that the discretion of the sentencing authority, whether judge or jury, must be limited and reviewable. See, e. g., Gregg v. Georgia, supra; Woodson v. North Carolina, 428 U. S., at 302-303; Zant v. Stephens, 462 U. S., at 879-880. The sentencer is responsible for weighing the specific aggravating and mitigating circumstances the legislature has determined are necessary touchstones in determining whether death is the appropriate penalty. Thus, even if it is a jury that imposes the sentence, the “community’s voice” is not given free rein. The community’s voice is heard at least as clearly in the legislature when the death penalty is authorized and the particular circumstances in which death is appropriate are defined. See Gregg v. Georgia, 428 U. S., at 183-184 (joint opinion); Furman v. Georgia, 408 U. S., at 394-395 (Burger, C. J., dissenting); id., at 452-454 (Powell, J., dissenting). We do not denigrate the significance of the jury’s role as a link between the community and the penal system and as a bulwark between the accused and the State. See Gregg v. Georgia, 428 U. S., at 181 (joint opinion); Williams v. Florida, 399 U. S. 78, 100 (1970); Duncan v. Louisiana, 391 U. S., at 156; Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968). The point is simply that the purpose of the death penalty is not frustrated by, or inconsistent with, a scheme in which the imposition of the penalty in individual cases is determined by a judge. We also acknowledge the presence of the majority view that capital" }, { "docid": "22393720", "title": "", "text": "sentencing, unlike other sentencing, should be performed by a jury. As petitioner points out, 30 out of 37 jurisdictions with a capital sentencing statute give the life- or-death decision to the jury, with only 3 of the remaining 7 allowing a judge to override a jury’s recommendation of life. The fact that a majority of jurisdictions have adopted a different practice, however, does not establish that contemporary standards of decency are offended by the jury override. The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws. “Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment” is violated by a challenged practice. See Enmund v. Florida, 458 U. S. 782, 797 (1982); Coker v. Georgia, 433 U. S. 584, 597 (1977) (plurality opinion). In light of the facts that the Sixth Amendment does not require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional. As the Court several times has made clear, we are unwilling to say that there is any one right way for a State to set up its capital sentencing scheme. See Pulley v. Harris, 465 U. S. 37 (1984); Zant v. Stephens, 462 U. S., at 884; Gregg v. Georgia, 428 U. S., at 195 (joint opinion). The Court twice has concluded that Florida has struck a reasonable balance between sensitivity to the individual and his circumstances and ensuring that the penalty is not imposed arbitrarily or discriminatorily. Barclay v. Florida, 463 U. S. 939 (1983); Proffitt v. Florida, 428 U. S. 242, 252 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). We are not persuaded that placing the responsibility on a trial judge to impose the sentence in a" }, { "docid": "22324218", "title": "", "text": "guidance,’ and that ‘make rationally reviewable the process for imposing a sentence of death,’” Godfrey v. Georgia, 446 U. S., at 428 (footnotes omitted). Only twice since 1976 have we actually invalidated a death sentence because of inadequate guidance to the sentencer, see Maynard, supra, at 362-364; Godfrey, supra, at 428-429, 433, but we have repeatedly incanted the principle that “unbridled discretion” is unacceptable, Penry v. Lynaugh, 492 U. S. 302, 326 (1989), that capital sentencing procedures must constrain and guide the sentencer’s discretion to ensure “that the death penalty is not meted out arbitrarily and capriciously,” California v. Ramos, 463 U. S. 992, 999 (1983), that “the State must establish rational criteria that narrow the decisionmaker’s judgment,” McCleskey v. Kemp, 481 U. S. 279, 305 (1987), that “death penalty statutes [must] be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion,” California v. Brown, 479 U. S. 538, 541 (1987), that our cases require “procedural protections ... to ensure that the death penalty will be imposed in a consistent, rational manner,” Barclay v. Florida, 463 U. S. 939, 960 (1983) (Ste vens, J., concurring in judgment), and that “[States] must administer [the death] 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,” Spaziano v. Florida, 468 U. S. 447, 460 (1984). See also Zant v. Stephens, 462 U. S. 862, 877 (1983); Eddings v. Oklahoma, 455 U. S. 104, 110 (1982); Pulley v. Harris, 465 U. S. 37, 51 (1984); Booth v. Maryland, 482 U. S., at 502; Mills v. Maryland, 486 U. S., at 374; Lowenfield v. Phelps, 484 U. S. 231, 244 (1988). B Shortly after introducing our doctrine requiring constraints on the sentencer’s discretion to “impose” the death penalty, the Court began developing a doctrine forbidding constraints on the sentencer’s discretion to “decline to impose” it. McCleskey v. Kemp, supra, at 304 (emphasis deleted). This second doctrine — counterdoctrine would be a better word — has completely exploded whatever coherence the notion of" }, { "docid": "22393730", "title": "", "text": "the States’ capital sentencing schemes to minimize the risk that the penalty will be imposed in error or in an arbitrary and capricious manner. There must be a valid penological reason for choosing from among the many criminal defendants the few who are sentenced to death. Zant v. Stephens, 462 U. S. 862, 876-877 (1983); Enmund v. Florida, 458 U. S. 782, 788-789 (1982); Godfrey v. Georgia, 446 U. S. 420, 428-429 (1980); Gardner v. Florida, 430 U. S. 349, 360-361 (1977) (plurality opinion); Proffitt v. Florida, 428 U. S. 242, 254-260 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Gregg v. Georgia, 428 U. S., at 196-207; Furman v. Georgia, supra. At the same time, the Court has insisted that the sentencing decision be based on the facts and circumstances of the individual and his crime. Zant v. Stephens, 462 U. S., at 879; Eddings v. Oklahoma, 455 U. S., at 110-112; Lockett v. Ohio, 438 U. S. 586, 601-605 (1978) (plurality opinion); Gregg v. Georgia, 428 U. S., at 197; Woodson v. North Carolina, 428 U. S. 280, 303-304 (1976) (plurality opinion). Petitioner’s efforts to distinguish the considerations relevant to imposition of a capital or a noncapital sentence bear more on the jury’s ability to function as the sentencer in a capital case than on the constitutionality of the judge’s doing so. We have no particular quarrel with the proposition that juries, perhaps, are more capable of making the life-or-death decision in a capital ease than of choosing among the various sentencing options available in a noncapital case. See ABA Standards for Criminal Justice 18-1.1, Commentary, pp. 18-21-18-22 (2d ed. 1980) (reserving capital sentencing from general disapproval of jury involvement in sentencing). Sentencing by the trial judge certainly is not required by Furman v. Georgia, supra. See Gregg v. Georgia, 428 U. S., at 188-196 (joint opinion). What we do not accept is that, because juries may sentence, they constitutionally must do so. Twenty-nine jurisdictions allow a death sentence only if the jury recommends death, unless the defendant has requested trial or sentencing by the court. See" } ]

[ { "docid": "5630232", "title": "", "text": "a 40-hour work week for payroll purposes hardly demonstrates that only 40-hour work weeks were required of her in the actual performance of her position. At oral argument, Tardie’s counsel argued that the time spent at a job is not a “function” of the job; it is a capability. Tardie claims that only specific duties can be “functions” of a position. Tardie attempts to distinguish her position’s extended-hours requirement from the essential functions involved in Feliciano, 160 F.3d at 785 (lifting patients), and Laurin v. Providence Hospital, Massachusetts Nurses Assoc., 150 F.3d 52, 57 (1st Cir.1998) (working the night shift). Tardie describes lifting patients and working the night shift as “specific duties” and describes the hours worked as a “capability.” Tardie cites no authority for this distinction, and we believe it to be mere semantics. It strains credulity to argue that the time of day that the hours are required to be worked can constitute an essential function but that the number of hours required to be worked cannot. At bottom, Tardie offers no evidence that she or anyone else could perform the job in only forty hours per week and offers no evidence to rebut appellees’ evidence that the extended-hours requirement is an essential function of the position. Consequently, the district court did not err in finding that working more than 40 hours per week was an essential function of the position. Lastly, Tardie argues that, even if she were unable to perform the essential functions of her job, appellees were still required to offer her the same or equivalent position with reasonable accommodations. Tardie claims that she has at least raised a genuine issue with regard to whether her request to work only a 40-hour week was a reasonable accommodation. We disagree. First of all, it is not at all clear that the concept of “reasonable accommodation” is applicable in the FMLA context. Section 825.214(b) eliminates the obligation to reinstate an employee returning from FMLA leave if that employee is “unable to perform an essential function of the position.” 29 C.F.R. 825.214(b). Unlike the ADA, this FMLA regulation" } ]

[ { "docid": "18470685", "title": "", "text": "disability for plaintiff after plaintiff was placed on restriction for typing and ordered off work by her doctors. Furthermore, defendant presents uncontradicted evidence that city officials attempted to accommodate plaintiff by putting her on light duty and by finding another job for her that would require less typing. This demonstrates that, while defendant believed plaintiff was incapable of typing, it did not regard plaintiff as “disabled” as defined by the ADA Plaintiff must-prove either that she had a “disability” or that she was “regarded as having a disability” as part of her prima facie ease under the ADA. Because she has failed to present evidence which creates a genuine factual dispute as to these issues, summary judgment is hereby granted for defendant. B. Essential Functions Although it is unnecessary to reach the issue of whether plaintiff could perform the essential functions of her job, the Court will address the essential functions arguments because summary judgment is so clearly warranted on these grounds. The ADA prohibits discrimination on the basis of disability against qualified individuals with disabilities. A qualified individual is one who both satisfies the prerequisites for the position and who can perform the essential functions of the job with or without reasonable accommodation. 29 C.F.R. § 1630.2(m). Defendant argues for summary judgment on plaintiffs disability discrimination claims on the grounds that plaintiff could not perform the essential duties of her job because she was restricted from typing more than two hours per eight hour shift. Therefore, the first issue to be addressed is whether typing for more than two hours per shift is an essential function of the job of senior clerk typist. 1. Typing is an Essential Function of Plaintiffs Job Under the ADA, the essential functions of a job are those functions that the jobholder must be able to perform unaided or with the assistance of reasonable accommodations. 29 C.F.R. § 1630.2(n). The inquiry into whether a particular function is essential initially focuses on whether the employer actually requires employees in the position to perform those functions. If this test is met, the inquiry then focuses on" }, { "docid": "20764936", "title": "", "text": "while at work. There is also some question as to whether the Business Manager’s duties could be completed on a part-time schedule, which would make Hatchett’s part-time request unreasonable. See e.g. Burnett v. Western Resources, Inc., 929 F.Supp. 1349 (D.Kan.1996) (holding that plaintiff was not qualified because he was unable to perform the duties of the eight-hour job within his four-hour work restriction). However, because the Court finds that Hatchett is not able to otherwise perform the essential functions while on the job for the proposed four hours, she is not qualified. In addition, Hatchett has not rebutted this evidence with a showing of her individual capabilities. See Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.1995) (holding that if the employer demonstrates that an employee cannot perform the essential functions of the job with or without accommodation, the burden shifts to the employee to present evidence of individual capabilities). Hatchett claims her individual capabilities are demonstrated by her expected return to work full-time, if the College would have allowed her to work-harden. Employers, however, are not required to predict the employee’s degree of success with recovery. Browning, 178 F.3d at 1049. Protection under the ADA based upon an employee’s eventual degree of future recovery was not Con gress’s intent in passing the ADA. Id. Hatchett has not established her prima facie case of disability discrimination under the ADA. For these same reasons, Hatchett cannot prevail on her failure to hire claim. Hatchett claims that the College’s failure to hire her for the Dean of Administrative Services position violates the ADA. In her brief, she admits that the job descriptions of the two positions are virtually identical. This is fatal to her failure to hire claim. As we have noted, Hatchett is unable to perform the essential job functions of either position with or without reasonable accommodation, and thus is not a “qualified” individual with a disability entitled to ADA protection. Finally, Hatchett’s ADA retaliation claim fails because she has not presented any evidence that she was terminated for any reason other than her inability to perform the" }, { "docid": "11604854", "title": "", "text": "not rest upon mere allegations or denials of the pleadings, but must affirmatively show, through the filing of supporting affidavits or otherwise, that there is a genuine issue for trial. See Goldman v. First National Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993); First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 258, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). Having reviewed the procedural standards that bind us in the adjudication of this matter, we briefly summarize the applicable substantive legal tenets. The ADA prohibits employment discrimination against qualified individuals with disabilities who can perform the essential functions of a job with or without reasonable accommodation. See 42 U.S.C. § 12112(a). The mandate of the ADA extends to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. Id. To establish a claim of disability discrimination under the ADA, a plaintiff must prove (1) that he or she was disabled within the meaning of the ADA; (2) that he or she was a qualified individual; and (3) that he or she was discharged because of her disability. Phelps v. Optima Health, Inc., 251 F.3d 21, 24 (1st Cir.2001). “A qualified individual under the ADA is one ‘able to perform the essential functions of [[his] position] with or without reasonable accommodation.’ ” Id. (citation omitted). “An ‘essential function’ is a fundamental job duty of the position at issue.... In the absence of evidence of discriminatory animus, courts generally give ‘substantial weight’ to the employer’s judgment as to what functions are essential.... Other evidence also is relevant, including: written job descriptions, consequences of not requiring the function, work experience of past incumbents, and work experience of current incumbents.’ ” Kvorjak v. Maine, 259 F.3d 48, 55 (1st Cir.2001). Although it is far from certain whether plaintiff has met the first element of the ADA, i.e. being disabled within the meaning of the law, defendant, as we have noted above, rests its dismissal request on plaintiffs alleged failure to establish the second element of the ADA test:" }, { "docid": "14734506", "title": "", "text": "advancement, discharge, or other terms, conditions, or privileges of employment. See 42 U.S.C. § 12112(a). To prevail on a claim of discriminatory discharge under the ADA, a plaintiff must establish (1) that he is a disabled person within the meaning of the ADA; (2) that he is qualified, i.e., with or without reasonable accommodation, he is still able to perform the essential functions of his job; and (3) that his employer fired him because of his disability. See White v. York Int’l Corp., 45 F.3d 357, 360-61 (10th Cir.1995). A person is considered disabled within the meaning of the ADA if he has “a physical or mental impairment that substantially limits one or more of [his] major life activities.” 42 U.S.C. § 12102(2)(A). For the purposes of this appeal, we will assume that Mr. Smith is disabled within the meaning of the ADA. Nonetheless, we find that he is unable to set out a prima facie ease under the ADA because he is unable, even with reasonable accommodation, to perform the essential functions of his job. To be protected under the ADA, a plaintiff must demonstrate that he is a “qualified individual with a disability.” 42 U.S.C. §§ 12111(8), 12112(a). This inquiry is twofold: First, we must determine whether the individual could perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Second, if ... we conclude that the individual is not able to perform the essential functions of the job, we must determine whether any reasonable accommodation by the employer would enable him to perform those functions. White, 45 F.3d at 361-62 (citations omitted); see also 42 U.S.C. § 12111(8) (defining “qualified individual with a disability”). Mr. Smith does not allege that he can perform the essential functions of his job in the light assembly department. In fact, he admits that because of his chronic dermatitis, his physicians considered him “permanently disabled” and unfit to work in that department. See Pl.’s First Am. Compl., Appellant’s App. Vol. I, Ex. A, at ¶ 16. Furthermore, Mr. Smith has not" }, { "docid": "3820776", "title": "", "text": "the weight of the evidence. Id. (internal citations and quotation marks omitted). The ADA prohibits discrimination against a “qualified individual on the basis of disability” in the “terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A plaintiff must prove that: “(1) the defendant is covered by the ADA; (2) plaintiff suffers from or is regarded as suffering from a disability within the meaning of the ADA; (3) plaintiff was qualified to perform the essential functions of the job, with or without reasonable accommodation; and (4) plaintiff suffered an adverse employment action because of his disability or perceived disability.” Capobianco v. City of New York, 422 F.3d 47, 56 (2d. Cir.2005). For purposes of this appeal, we assume arguendo that Kinneary is disabled under the ADA and examine whether Kinneary was qualified to perform the essential functions of his job, with or without the accommodation to which he claims entitlement. This Court has said that, “[t]he term ‘essential functions,’ which is not defined in the statutes themselves, is generally defined in ADA regulations promulgated by the Equal Employment Opportunity Commission (‘EEOC’) to mean the ‘fundamental’ duties to be performed in the position in question, but not functions that are merely ‘marginal.’ ” Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir.1997) (citing 29 C.F.R. § 1630.2(n)(l)). An essential function of Kinneary’s job as a sludge boat captain was, by definition, acting as a captain, which he could only do if he held the proper license. Kinneary argues that he would not have lost his captain’s license if the Appellants had offered him a reasonable accommodation. He contends that he should have received the opportunity to have his test cancelled based upon a physician’s evaluation. According to Kinneary: The regulations governing drug testing provide for an accommodation for employees with Shy-Bladder Syndrome. Under 49 C.F.R. § 40.193(c), the employee “must obtain, within five days, an evaluation from a licensed physician, acceptable to the MRO, who has expertise in the medical issues raised by the employee’s failure to provide a sufficient specimen.” The referral physician may advise the" }, { "docid": "17059093", "title": "", "text": "jury issue on whether she has a disability because a reasonable jury could conclude, based on this evidence, that Davis has an impairment that substantially limits the major life activity of breathing. Specifically, a jury could reasonably determine that Davis is “significantly restricted as to the condition, manner or duration under which she can [... breathe] as compared to the condition, manner, or duration under which the average person in the general population can [... breathe].” See 29 C.F.R. § 1630.2(j)(1); see also Whillock v. Delta Air Lines, Inc., 926 F.Supp. 1555, 1562-63 (N.D.Ga.1995) (finding that plaintiff had presented suffícieñt evidence to create a triable issue regarding whether she has a disability due to MCS under the ADA), aff'd, 86 F.3d 1171 (11th Cir.1996); Treadwell v. Dow-United Technologies, 970 F.Supp. 974, 977-79 (M.D.Ala.1997) (stating that court had previously denied defendant’s motion for summary judgment on plaintiffs ADA claim regarding MCS). 'The court is aware of the many cases that hold that an individual is not “disabled” if she has an impairment that is under control, such as diabetes. However, the court is unaware of any authority analyzing a situation like the one here in which Davis has what is arguably a controllable condition, but her employer allegedly refused to make the reasonable ac: commodations necessary to permit Davis to control it. Thus, the court denies the Commission’s motion for summary judgment on this issue. b. Was Davis a Qualified Individual? The Commission argues that Davis is covered by the ADA only if she is capable of performing the essential functions of the job “with or without reasonable accommodation.” See, e.g., Anderson v. Coors Brewing Co., 181 F.3d 1171, 1175 (10th Cir.1999). It claims that because Davis admitted that her supervisor did everything possible to accommodate her, and because Davis was unable to come forward with, a reasonable accommodation that would, be effective, she was not a qualified individual with a disability. Specifically, the.. Commission that Davis admitted that there was no place within her unit to,which she could have been moved that would have been better for her.. The Commission" }, { "docid": "23262637", "title": "", "text": "Court has explained that “a person is ‘regarded as’ disabled within the meaning of the ADA if a covered entity mistakenly believes that the person’s actual, nonlimiting impairment substantially limits one or more major life activities.” Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521-22, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999); see also Hilburn v. Murata Elecs. N. Am., 181 F.3d 1220, 1230 (11th Cir.1999) (“As with actual disabilities, a perceived impairment must be believed to substantially limit a major life activity of the individual.”). Thus, “[a]n employer runs afoul of the ADA when it makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity.” Sutton, 527 U.S. at 490, 119 S.Ct. 2139. The district court found a genuine issue of material fact as to whether Singleton regarded D’Angelo as disabled, but never theless determined that D’Angelo was not entitled to a reasonable accommodation for two reasons: first, because she was not a “qualified individual”; and second, because the ADA mandates accommodations only for employees who are disabled in the actual-impairment sense. We consider each in turn. 1. The ADA prohibits employment discrimination against a “qualified individual with a disability,” defined as an “individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). Accordingly, an ADA plaintiff “must show either that he can perform the essential functions of his job without accommodation, or, failing that, show that he can perform the essential functions of his job with a reasonable accommodation.” Davis, 205 F.3d at 1305. If the individual “is unable to perform an essential function of his ... job, even with an accommodation, he is, by definition, not a ‘qualified individual’ and, therefore, not covered under the ADA. In other words, the ADA does not require [the employer] to eliminate an essential function of [the plaintiffs] job.” Id. (citation omitted). The district court found as a matter of law that D’Angelo was not a qualified" }, { "docid": "23262638", "title": "", "text": "ADA mandates accommodations only for employees who are disabled in the actual-impairment sense. We consider each in turn. 1. The ADA prohibits employment discrimination against a “qualified individual with a disability,” defined as an “individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). Accordingly, an ADA plaintiff “must show either that he can perform the essential functions of his job without accommodation, or, failing that, show that he can perform the essential functions of his job with a reasonable accommodation.” Davis, 205 F.3d at 1305. If the individual “is unable to perform an essential function of his ... job, even with an accommodation, he is, by definition, not a ‘qualified individual’ and, therefore, not covered under the ADA. In other words, the ADA does not require [the employer] to eliminate an essential function of [the plaintiffs] job.” Id. (citation omitted). The district court found as a matter of law that D’Angelo was not a qualified individual since working on a conveyor belt was an essential function of her product transporter position, which she was unable to perform even with a reasonable accommodation. After thoroughly reviewing this record, we disagree, and conclude that there is a genuine issue of material fact as to whether working on a conveyor belt was an essential function of the product transporter job. The ADA’s implementing regulations provide that “[t]he term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires,” and “does not include the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(l). “Whether a function is essential is evaluated on a case-by-case basis by examining a number of factors.” Davis, 205 F.3d at 1305. In making this determination, the statute provides, “consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential" }, { "docid": "10284003", "title": "", "text": "to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; (5) the terms of a collective bargaining agreement; (6) the work experience or past incumbents on the job; and/or (7) the current work experience of incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(3) (1996). Defendant argues that Plaintiff cannot establish a prima facie ease of discrimination under the TCHRA or ADA, because he cannot establish the first two elements of the claim, that he has a disability and that he was qualified for the production technician position. Defendant claims that Plaintiff is not “disabled” within the meaning of the ADA because his physical impairment does not substantially limit any of his major life activities. Specifically, Defendant argues that Plaintiff, with the use of his prosthesis, can walk, speak, hear, see, breathe, learn, work, and take care of himself. Plaintiff, on the other hand, argues that his ability to perform these major life activities should be evaluated without the use of his prosthesis and that without it, he cannot perform the major life activity of walking. The Court need not decide this issue because even assuming arguendo that Plaintiff has a disability under the ADA he cannot meet the second element of his claim, that he was qualified for the position. The Court finds that Plaintiff was not qualified for the production technician position for which he applied because he could not perform the essential functions of the position, nor could reasonable accommodations be made in the position so that he could perform them. The production technician position at a chemical plant is a physically demanding job, which is performed in rotating twelve-hour shifts. According to Defendant’s “Occupational Demands/Physical Requirements Checklist” and the affidavit of Carl Davis, the Operating Supervisor of the HDI II/DES-W area, approximately sixty-seven percent of a coatings area production technician’s job is performed outside. This outside work takes place in the HDI II/ DES-W units," }, { "docid": "23421733", "title": "", "text": "some economically valuable work in the national economy.” DePaoli v. Abbott Laboratories, 140 F.3d 668, 672 (7th Cir.1998) (distinguishing the “residual function” test used in Social Security Act cases). Thus, the Seventh Circuit concluded in DePaoli that the district court’s grant of summary judgment to the defendant on the plaintiffs disability claim was “premature” because the plaintiff presented evidence that she was “precluded from more than merely the Abbott production line job.” Id. at 673. In sum, because working is generally accepted as a major life activity, and be cause the determination whether a claimant is disabled depends on an individualized inquiry, the district court did not err in concluding that Burns was disabled because his back injury precluded him from performing at least 50% of the jobs previously available to him. See Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 676 (7th Cir.1998) (holding that a “rational trier of fact could reasonably find that the substantial percentage reductions [35% — 89%] in the broad range of jobs available to [the] plaintiffs, coupled with their own testimony about the effects of their disabilities on their work as production associates, substantially limited them in the major life activity of working”). Burns’s Status as a “Qualified Individual With a Disability” Entitled to Reasonable Accommodation Under the ADA To recover under the ADA, a plaintiff must do more than show that he is “disabled” within the meaning of the statute. He must also establish that he is a “qualified individual with a disability” by showing: (1) that he “satisfies the prerequisites for the position [he holds or desires], such as possessing the appropriate educational background, employment experience, [and] skills ... ”; and (2) that he “can perform the essential functions of the position held or desired, with or without reasonable accommodation.” Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 676 (7th Cir.1998). As a threshold matter, there is no merit to KCC’s argument that the ADA did not require the Company to consider reassigning Burns once it became clear that Burns could no longer perform the essential functions of his former position. See" }, { "docid": "5630229", "title": "", "text": "summary judgment against Tardie’s Rehabilitation Act claim for the same reason her ADA claim fails: she has not shown that appellees regarded her as having an impairment which substantially limits a major life activity. C. The Family and Medical Leave Act Tardie also claims that her termination while she was on medical leave violated the FMLA. An eligible employee who takes leave under the FMLA is entitled to be restored to the same or an equivalent position upon returning from leave. See 29 U.S.C. § 2614(a)(1); Hodgens v. General Dynamics Corp., 144 F.3d 151, 159 (1st Cir.1998) (citing 29 U.S.C. § 2614(a)(1) and 29 C.F.R. § 825.100(c)). However, the regulations promulgated under the FMLA state that “[i]f the employee is unable to perform an essential function of the position because of a physical or mental condition ... the employee has no right to restoration to another position under the FMLA.” 29 C.F.R. § 825.214(b). The regulation then goes on to state that the employer in such a situation may have obligations under the ADA. See id. In analyzing Tardie’s FMLA claim under § 825.214(b), the district court found: (1) that the position of Human Resources Director at RHRI requires the employee to work fifty to seventy hours per week, and (2) that the ability to work extended hours was an essential function of the position. Because Tardie cannot work more than forty hours per week, the district court found that Tardie could not perform an essential function of the position, and therefore had no right to reinstatement. Tardie raises several arguments challenging this finding. First, Tardie claims that the evidence does not support a finding that an essential function of her job was working more than 40 hours per week. She points to the job description of the Director of Human Resources position — which she wrote — and notes that it does not set forth the ability to work sixty to seventy-hour weeks as an essential function of the position. However, that job description does state that the person holding the position must have “sufficient endurance to perform tasks" }, { "docid": "22936524", "title": "", "text": "result of the violations. This appeal followed. The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We set forth the familiar summary judgment standard in the margin. III. Discussion A. Improper Discharge Under the ADA The ADA forbids employers from “discriminating] against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Tice’s first claim is that CATA discriminated against him on the basis of disability by using his injuries incurred in the September 1996 automobile accident as a pretext for his discharge. To state a claim for employment discrimination under the ADA, a plaintiff must demonstrate that he or she is a “qualified individual with a disability” within the meaning of the Act, and that he or she has suffered an adverse employment decision as a result of the discrimination. See Taylor v. Phoenixville Sch. Dist, 184 F.3d 296, 306 (3d Cir.1999). A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). A “disability” is defined as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). Although the statute does not define the term “major life activities,” the EEOC has issued regulations explaining that major life activities are “functions such as caring for oneself, per forming manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i). Tice argues that he is disabled within the meaning of the ADA because: (1) his back injury constitutes an impairment that “substantially limits” the “major life activity” of working; (2) he has a “record” of having such" }, { "docid": "13719705", "title": "", "text": "an inability to accommodate. Id. at 361. Upon presentation of an inability to accommodate by the employer, the plaintiff must come forward with evidence concerning his individual capabilities and suggestions for possible accommodations to rebut the employer’s claimed inability to accommodate. Id. Thus, the threshold inquiry is whether plaintiff has made out a prima facie case. If not, we do not reach the subsequent question of Western’s ability to accommodate. Congress intended relevant case law developed under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., to be applicable to analogous issues under the ADA. Id. at 360 n. 5. In applying the ADA, we also look to the regulations promulgated at the request of Congress by the Equal Employment Opportunity Commission (“EEOC”), 29 C.F.R. § Part 1630. See 42 U.S.C. § 12116 and 12206. Defendant argues that plaintiff is not disabled within the meaning of the ADA. “Disability” is defined in the Act as follows: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). “Substantially limits” means: significantly restricted as to condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j). “Essential functions” is defined in the EEOC regulations as the “fundamental job duties of the employment position,” not to include marginal functions. 29 C.F.R. § 1630.2(n)(l). Defendant argues that while the ability to walk is a major life activity, plaintiffs restriction on walking no more than four hours per day is not a substantial limitation on the major life activities of walking or working. An average person in the general population would not be able to walk more than four hours per day without experiencing some discomfort and the limitation does not restrict plaintiffs ability to perform jobs other than the meter" }, { "docid": "13776105", "title": "", "text": "of impairment” category of disability. See, e.g., Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1087 (10th Cir.1999) (fact that plaintiff could not perform any life activities during brief— five day- — hospitalization did not constitute record of substantial impairment); 29 C.F.R. § 1630, App. § 1630.2(j) (eight week recovery from broken leg is an impairment of “brief’ duration). Plaintiff alleges finally that his employer terminated his employment and failed to offer him an alternate one because it regarded him as disabled. This third category of disability renders a person “disabled” within the meaning of the Act so long as he is perceived as being substantially limited, even if he has only a partially limiting impairment, or no impairment at all. See 29 C.F.R. 1630.2® App. § 1630.2®. Plaintiff has stated sufficient facts to support the inference that his employer did not believe that he could perform a wide range of jobs because of his heart condition; that is, that he was substantially limited in the major life activity of working. Therefore, Plaintiff has pleaded adequately that he is disabled under the third category of disability. 2. Qualified Individual with a Disability The second element of an employment discrimination claim under the ADA is an allegation that the plaintiff is a “qualified individual with a disability.” Lessard, 175 F.3d at 197. A qualified individual with a disability is one who can perform all of the essential functions of the job he wants or desires with or without reasonable accommodation. 42 U.S.C. § 12111(8). Among other things, “reasonable accommodation” refers to modifications or adjustments in the workplace, as well as job restructuring and reassignment to a vacant position. Id. at § 12111(9). Defendant argues that Plaintiff faded to demonstrate that he is a qualified individual with a disability because, even assuming he is disabled within the meaning of the ADA, he was not qualified to perform his job at the time he asked to come back to work. This is partially true. Plaintiff was not qualified to be a delivery driver, since he did not possess a valid driver’s license" }, { "docid": "20764937", "title": "", "text": "Employers, however, are not required to predict the employee’s degree of success with recovery. Browning, 178 F.3d at 1049. Protection under the ADA based upon an employee’s eventual degree of future recovery was not Con gress’s intent in passing the ADA. Id. Hatchett has not established her prima facie case of disability discrimination under the ADA. For these same reasons, Hatchett cannot prevail on her failure to hire claim. Hatchett claims that the College’s failure to hire her for the Dean of Administrative Services position violates the ADA. In her brief, she admits that the job descriptions of the two positions are virtually identical. This is fatal to her failure to hire claim. As we have noted, Hatchett is unable to perform the essential job functions of either position with or without reasonable accommodation, and thus is not a “qualified” individual with a disability entitled to ADA protection. Finally, Hatchett’s ADA retaliation claim fails because she has not presented any evidence that she was terminated for any reason other than her inability to perform the essential functions of the job with or without reasonable accommodation. See e.g. Sims v. Sauer-Sundstrand, Co., 130 F.3d 341, 343 (8th Cir.1997) (setting forth the prima facie elements of a retaliation claim). II. Family and Medical Leave Act Claims. The issue before the Court is one which has not been addressed in a reported opinion. Specifically, we must determine whether an employee, who is unable to perform the essential functions of a job, is entitled to intermittent or reduced schedule leave. The district court found that at the end of the twelve week period, Hatchett was unable to perform the essential functions of the job and was not entitled to restoration. On appeal, Hatchett does not specifically challenge the district court’s conclusion regarding full-time leave and entitlement to restoration. Rather, Hatchett attacks the district court’s failure to address her request for intermittent leave. Hatchett argues that she would have been able to return to work by the time her FMLA leave expired, or within 24 weeks, if the College and Titus would have allowed her" }, { "docid": "5630225", "title": "", "text": "perform a single, particular job does not constitute a substantial limitation in the major life activity of working. 29 C.F.R. § 1630.2(j)(3). Hence, the fact that appellees may have regarded Tardie as unable to work more than 40 hours per week, and thereby unable to perform her particular job, does not mean that appellees regarded her as being substantially limited in the major life activity of working. “An impairment that disqualifies a person from only a narrow range of jobs is not considered a substantially limiting one.” Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 723 (2d Cir.1994), cert. denied, 513 U.S. 1147, 115 S.Ct. 1095, 130 L.Ed.2d 1063 (1995); see also McKay v. Toyota Mfg., U.S.A., Inc., 110 F.3d 369, 373 (6th Cir.1997) (citing Heilweil and finding that the plaintiffs inability to perform repetitive-motion factory work did not restrict her ability to perform either a class of jobs or a broad range of jobs); Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir.1995) (citing Heilweil ). As the district court noted, there are vast employment opportunities available which require only 40-hour work weeks. Without more, we cannot ascribe error to the district court’s finding that appellees regarded Tardie as having an impairment that did not substantially limit one or more of her major life activities. Therefore, we affirm the district court’s grant of summary judgment against Tardie’s ADA claim for failure to demonstrate that she suffered from a disability. B. The Rehabilitation Act Section 504(a) of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability ... be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). In any claim under the Rehabilitation Act, the plaintiff must first establish that she has a disability covered by the Act. See Leary v. Dalton, 58 F.3d 748, 752 (1st Cir.1995). As discussed above, Tardie has not raised a genuine issue with regard to whether she has a “disability” under the ADA. “Disability” is defined identically under the ADA and the Rehabilitation" }, { "docid": "22927307", "title": "", "text": "reverse the district court’s holding as a matter of law that Fjellestad was not disabled within the meaning of the ADA and not qualified to perform the essential functions of the position with reasonable accommodation. We find that genuine issues of material fact remain on these issues that preclude'summary judgment. REVERSED. . He also met with her on October 23, 1995, and told her that once she had exhausted the leave time available to her under the Family Medical Leave Act she would be welcomed back to the full-time responsibility of running the restaurant, but that if she was unable to work the required 50 hours per week she would be demoted to a shift manager position at the restaurant. . The facts in this case are thus distinguishable from those in Berg v. Norand Corp., 169 F.3d 1140 (8th Cir.1999), in which this court recently held that a plaintiff who was limited to working 40-50 hours per week was not substantially limited in the major life activity of working. The diabetic plaintiff in Berg could work 40-50 hours per week, more than a full-time work week, and after being terminated, was never unemployed, started her own tax and accounting practice, and became the chief financial officer of a construction company. I'd. at 1145. . Plaintiff also argues that Pizza Hut regarded her as disabled. Because we find that a triable issue of material fact exists as to whether Fjellestad was actually disabled under the first prong of the ADA's definition of disability, we need not address her \"regarded as\" claim. . Reasonable accommodations may include: \"job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations. ...\" 42 U.S.C. § 12111 (9)(B). . Although in this case Fjellestad made a written request and used the relevant words of \"reasonable accommodation,” as the Third Circuit stated in Taylor, an employee is not required to request accommodation in writing, or to use" }, { "docid": "22927306", "title": "", "text": "set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). However, the correct standard as to burden of proof was not an issue in our first opinion. We addressed the issues presented by Fjellestad on appeal and the only two issues discussed by the district court when it granted summary judgment in Pizza Hut’s favor: (1) whether Fjellestad created a factual dispute about whether she was disabled within the meaning of the ADA; and (2) whether Fjellestad created a factual dispute about whether reasonable accommodation was possible. After considering these issues, we find that Fjellestad met her burden to establish a prima facie case of disability and made a request for reasonable accommodation. The burden of persuasion remained on Fjellestad at all times. We conclude that the evidence, along with the need of the employer to enter into an interactive process to determine the possibility of reasonable accommodations, presents sufficient facts to create genuine issues of material fact for a jury to resolve. III. We, therefore, reverse the district court’s holding as a matter of law that Fjellestad was not disabled within the meaning of the ADA and not qualified to perform the essential functions of the position with reasonable accommodation. We find that genuine issues of material fact remain on these issues that preclude'summary judgment. REVERSED. . He also met with her on October 23, 1995, and told her that once she had exhausted the leave time available to her under the Family Medical Leave Act she would be welcomed back to the full-time responsibility of running the restaurant, but that if she was unable to work the required 50 hours per week she would be demoted to a shift manager position at the restaurant. . The facts in this case are thus distinguishable from those in Berg v. Norand Corp., 169 F.3d 1140 (8th Cir.1999), in which this court recently held that a plaintiff who was limited to working 40-50 hours per week was not substantially limited in the major life activity of working. The diabetic plaintiff in Berg" }, { "docid": "19897321", "title": "", "text": "such as a web camera “might permit [Mulloy] to do his job from another location,” the district court concluded that such an accommodation would necessitate the hiring of an additional employee to man the camera, and would thus impose an undue hardship on Acushnet. Id. C. Application of the ADA 1. First Element: Substantial Limitation of a Major Life Activity Mulloy argues that he is disabled under the ADA because his occupational asthma substantially limits his ability to breathe and work. Acushnet argues that Mulloy is not “disabled” because “his breathing was only affected at a particular job at a particular location” and, with respect to the major life activity of working, he “did not show that he was limited from a broad range or class of jobs.” We need not decide whether Mulloy was disabled within the meaning of the ADA. The second element of an ADA claim—i.e., whether Mulloy was a qualified individual capable of performing the essential functions of his job with or without reasonable accommodation—provides a sufficient basis for the decision. We therefore assume without deciding that Mulloy was disabled under the ADA. 2. Second Element: Qualified Individual Capable of Performing Essential Functions With or Without Reasonable Accommodation “In order to be a ‘qualified individual’ under the Act, the burden is on the employee to show: first, that she possesses the requisite skill, experience, education and other job-related requirements for the position, and second, that she is able to perform the essential functions of the position with or without reasonable accommodation.” García-Ayala, 212 F.3d at 646 (internal citation, quotation marks, and brackets omitted); see also 29 C.F.R. § 1630.2(m). There is no dispute that Mulloy satisfies the first of these requirements. Turning to the second requirement, we must analyze “whether the individual can perform the essential functions - of her position” without reasonable accommodation; and if not, whether “any reasonable accommodation by her employer would allow her to do so.” Phelps v. Optima Health, Inc., 251 F.3d 21, 25 (1st Cir.2001). “An ‘essential function’ is a fundamental job duty of the position at issue ... [it]" }, { "docid": "5614257", "title": "", "text": "a ‘qualified individual.’ ” Id. The ADA defines a disability as “a physical or mental impairment that substantially limits one or more of the major life activities,” 42 U.S.C. § 12102(2)(A), and defines a qualified individual as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires,” id. § 12111(8). Canny’s visual impairment is a disability within the meaning of the ADA because it substantially limits Canny’s major life activity of seeing. Canny suffered adverse employment action when he lost his job due to his vision disability. Dr Pepper, however, contends Canny failed to prove by sufficient evidence he was a qualified individual under the ADA. 1. Qualified Individual Analyzing whether a person is a qualified individual is a two-step process: first, we determine whether the individual possesses the requisite skills for the job; second, we must determine whether the individual can perform the essential functions of the job, with or without reasonable accommodation. Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 786-87 (8th Cir. 1998). “An essential function ‘means the fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position.’ ” Id. at 787 (quoting 29 C.F.R. § 1630.2(n)(1)). Evidence a function is essential includes the employer’s judgment as to which functions are essential, a written job description, and the amount of time spent on the job performing the function. 29 C.F.R. § 1630.2(n)(3). Dr Pepper concedes Canny possessed the requisite skills for the merchandiser and warehouse loader positions, but argues the evidence was insufficient to show Canny could perform the essential functions of either position and, therefore, Canny failed to prove he was a qualified individual under the ADA. Dr Pepper also argues Canny did not prove by sufficient evidence Dr Pepper failed to engage in the interactive process. Canny submits Dr Pepper waived the sufficiency of the evidence argument regarding the warehouse loader position by omitting the issue in its pre-verdict Rule 50(a)" } ]